[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]



 
             THE ROLE OF NEPA IN THE INTERMOUNTAIN STATES

=======================================================================



                        OVERSIGHT FIELD HEARING

                               before the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

           Monday, August 1, 2005, in Rio Rancho, New Mexico

                               __________

                           Serial No. 109-28

                               __________

           Printed for the use of the Committee on Resources



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                         COMMITTEE ON RESOURCES


                 RICHARD W. POMBO, California, Chairman
       NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska                    Dale E. Kildee, Michigan
Jim Saxton, New Jersey               Eni F.H. Faleomavaega, American 
Elton Gallegly, California               Samoa
John J. Duncan, Jr., Tennessee       Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland         Solomon P. Ortiz, Texas
Ken Calvert, California              Frank Pallone, Jr., New Jersey
Barbara Cubin, Wyoming               Donna M. Christensen, Virgin 
  Vice Chair                             Islands
George P. Radanovich, California     Ron Kind, Wisconsin
Walter B. Jones, Jr., North          Grace F. Napolitano, California
    Carolina                         Tom Udall, New Mexico
Chris Cannon, Utah                   Raul M. Grijalva, Arizona
John E. Peterson, Pennsylvania       Madeleine Z. Bordallo, Guam
Jim Gibbons, Nevada                  Jim Costa, California
Greg Walden, Oregon                  Charlie Melancon, Louisiana
Thomas G. Tancredo, Colorado         Dan Boren, Oklahoma
J.D. Hayworth, Arizona               George Miller, California
Jeff Flake, Arizona                  Edward J. Markey, Massachusetts
Rick Renzi, Arizona                  Peter A. DeFazio, Oregon
Stevan Pearce, New Mexico            Jay Inslee, Washington
Henry Brown, Jr., South Carolina     Mark Udall, Colorado
Thelma Drake, Virginia               Dennis Cardoza, California
Luis G. Fortuno, Puerto Rico         Stephanie Herseth, South Dakota
Cathy McMorris, Washington
Bobby Jindal, Louisiana
Louie Gohmert, Texas
Marilyn N. Musgrave, Colorado
Vacancy

                     Steven J. Ding, Chief of Staff
                      Lisa Pittman, Chief Counsel
                 James H. Zoia, Democrat Staff Director
               Jeffrey P. Petrich, Democrat Chief Counsel
                                 ------                                

                      TASK FORCE ON IMPROVING THE
                    NATIONAL ENVIRONMENTAL POLICY ACT

                 CATHY McMORRIS, Washington, Chairwoman
             TOM UDALL, New Mexico, Ranking Democrat Member

Ken Calvert, California              George Miller, California
George P. Radanovich, California     Edward J. Markey, Massachusetts
Chris Cannon, Utah                   Frank Pallone, Jr., New Jersey
Jim Gibbons, Nevada                  Grace F. Napolitano, California
Greg Walden, Oregon                  Jay Inslee, Washington
Rick Renzi, Arizona                  Mark Udall, Colorado
Stevan Pearce, New Mexico            Raul M. Grijalva, Arizona
Henry Brown, Jr., South Carolina     Jim Costa, California
Thelma Drake, Virginia               Nick J. Rahall II, West Virginia, 
Louie Gohmert, Texas                     ex officio
Richard W. Pombo, California, ex 
    officio



                                 ------                                
                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on Monday, August 1, 2005...........................     1

Statement of Members:
    Cannon, Hon. Chris, a Representative in Congress from the 
      State of Utah..............................................     5
    Grijalva, Hon. Raul M., a Representative in Congress from the 
      State of Arizona...........................................     6
    McMorris, Hon. Cathy, a Representative in Congress from the 
      State of Washington........................................     2
    Udall. Hon. Tom, a Representative in Congress from the State 
      of New Mexico..............................................     3

Statement of Witnesses:
    Blancett, Treciafaye ``Tweeti,'' Owner and Operator, Blancett 
      Ranches, Aztec, New Mexico.................................    32
        Prepared statement of....................................    34
    Bradley, Walter, Former Lieutenant Governor of New Mexico, 
      Clovis, New Mexico.........................................    34
        Prepared statement of....................................    36
    Brown, David R., Regional Regulatory Advisor, BP America, 
      Inc., Denver, Colorado.....................................    26
        Prepared statement of....................................    28
    Budd-Falen, Karen, Attorney, Budd-Falen Law Offices, P.C., 
      Cheyenne, Wyoming..........................................    40
        Prepared statement of....................................    41
    Fraley, Richard E., Vice President--San Juan Division, 
      Burlington Resources, Farmington, New Mexico...............    47
        Prepared statement of....................................    48
    Frost, Clement J., Chairman of the Tribal Council, Southern 
      Ute Indian Tribe, Ignacio, Colorado........................    51
        Prepared statement of....................................    52
    Grogan, Sterling, Biologist & Planner, Middle Rio Grande 
      Conservancy District, Albuquerque, New Mexico..............    55
        Prepared statement of....................................    56
        Response to questions submitted for the record...........    58
    Heinrich, Martin, Albuquerque City Councilor, Albuquerque, 
      New Mexico.................................................    23
        Prepared statement of....................................    24
    Kupillas, Sue, Executive Director, Communities for Healthy 
      Forests, Medford, Oregon...................................    60
        Prepared statement of....................................    62
    Lance, Ryan, Endangered Species Policy Act Coordinator, 
      Office of Governor Freudenthal, Cheyenne, Wyoming..........    18
        Prepared statement of....................................    20
        Response to questions submitted for the record...........    22
    Montoya, Stella, New Mexico Farm & Livestock Bureau, La 
      Plata, New Mexico..........................................    37
        Prepared statement of....................................    39
    Prukop, Joanna, Secretary of Energy, Minerals and Natural 
      Resources, Office of Governor Richardson, Santa Fe, New 
      Mexico.....................................................    12
        Prepared statement of....................................    14
    Seciwa, Calbert A., Pueblo of Zuni Tribal Member, Tempe, 
      Arizona....................................................    64
        Prepared statement of....................................    66
    Zavadil, Duane, Vice President, Government and Regulatory 
      Affairs, Bill Barrett Corporation, Denver, Colorado........    58
        Prepared statement of....................................    59

Additional materials supplied:
    Wilson, Hon. Heather, a Representative in Congress from the 
      State of New Mexico, Letters submitted for the record......     9


OVERSIGHT FIELD HEARING ON THE ROLE OF NEPA IN THE INTERMOUNTAIN STATES

                              ----------                              


                         Monday, August 1, 2005

                     U.S. House of Representatives

                            NEPA Task Force

                         Committee on Resources

                         Rio Rancho, New Mexico

                              ----------                              

    The NEPA Task Force met, pursuant to call, at 10:00 a.m., 
at Rio Rancho High School, Rio Rancho, New Mexico, 
Representative Cathy McMorris [Chairwoman of the Task Force] 
presiding.
    Present: Representatives McMorris, Cannon, Tom Udall, and 
Grijalva.
    Ms. McMorris. If you can hear that, we can call the meeting 
to order. I'm pleased that everyone is here. We're going to 
start with the Pledge of Allegiance and Kate White, who is the 
President of the New Mexico Junior Cattle Growers, is going to 
lead us. So please stand.
    [Ms. White leads the Pledge of Allegiance.]
    Ms. McMorris. Jim Owen, our wonderful Mayor.
    Mr. Owen. I'm the Mayor of Rio Rancho and I want to welcome 
all of you to this wonderful facility that this school has 
allowed us to use for this particular Task Force meeting.
    What we have today, obviously, is the Resources Committee, 
actually, this is a Task Force of that Committee that's going 
to be taking testimony today and we're grateful to have the 
opportunity to have them come to New Mexico, in particular, and 
Rio Rancho specifically. And we are always glad to have 
somebody in the fastest growing in the United States and so 
this is something that we're very interested in, obviously. 
Everything that's going to be talked about today has an impact, 
not only on the people of Rio Rancho, but the nation.
    And so we're grateful to be able to host this and I really 
appreciate the fact that so many people of the community have 
come to share with us. So welcome and I want to again 
congratulate you for picking this wonderful venue. And anything 
that we can do to host you and to help you out in any way, you 
just let us know and we'll make it happen.

STATEMENT OF HON. CATHY McMORRIS, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF WASHINGTON

    Ms. McMorris. Thank you. Well, first of all, we're pleased 
to be in Representative Udall's District and thank you for the 
invitation to come to New Mexico.
    I'll stand up. Thank you all for coming. This is the fourth 
hearing of the NEPA Task Force. NEPA is the National 
Environmental Policy Act. We were asked by the Chairman of the 
Resources Committee to convene and just take a look at this Act 
and how it's been implemented on the ground. I was thanking 
Congressman Udall for the invitation to come to New Mexico. 
We're really pleased to be here and I am pleased that he would 
agree to be the Ranking Member of this bipartisan task force.
    I am Cathy McMorris. I am the Chairman of the Task Force. I 
am from eastern Washington State. And this is our fourth in a 
series of six hearings. We've already learned a lot about the 
NEPA process and the ways that we can make it work better. In 
our process we have heard from a broad range of people. In 
Spokane, we heard about some key transportation projects that 
have been stalled because of time and cost. In Arizona, we 
heard that NEPA is hurting our ability to keep our forests 
healthy. In Texas, we heard that it can take 20 years for a 
project, whether it is a reservoir, an oil refinery, or power 
plant, can or cannot be built, is a long time for a community 
to wait for water, gas or electrical power.
    Farmers, ranchers, small businesses, tribal leaders, 
environmentalists and others have had the chance to share their 
ideas and concerns with the Task Force, either in person or 
through written comment.
    We all share the same goal of clean air, clean water and a 
healthy environment. We want to focus NEPA to ensure sound 
environmental decisions instead of endless analysis and 
litigation take place. We must protect and enhance our 
wildlife, watersheds and communities and put common sense back 
into environmental decisionmaking. NEPA shouldn't simply be 
bureaucracy in action. No one wins in that case.
    In this process we want to preserve the intent of NEPA, 
including the public involvement which is at the heart of this 
law that was past 35 years ago.
    New Mexico and other states represented by our witnesses 
provide us unique examples of how NEPA works and how it can be 
improved. The goal of the Task Force is to get out of 
Washington, D.C., to listen firsthand to the people on the 
ground, so that we can better understand if NEPA is living up 
to its intent.
    It's no secret that NEPA, as well as other environmental 
laws, have spurred vast amounts of litigation, has stalled 
important economic development projects and cost taxpayers 
millions. Nearly every word in NEPA has been litigated. That 
doesn't help our economy, and it certainly doesn't help our 
environment.
    The question before this Task Force is can we do better, 
for our economy and for our environment?
    I'd like to now recognize Congressman Udall for any opening 
remarks, he might want to make.

STATEMENT OF HON. TOM UDALL, A REPRESENTATIVE IN CONGRESS FROM 
                    THE STATE OF NEW MEXICO

    Mr. Udall. Cathy, thank you very much and let me, first of 
all, tell you how much I appreciate you coming down to the 
Third Congressional District and my other two colleagues here, 
Representative Chris Cannon from Utah and Raul Grijalva from 
Arizona, it's a pleasure to have all of you here and you'll see 
the hospitality, I think, of the good people of Rio Rancho. 
This place is called the City of Vision and it really is a 
place that has a vision for the future.
    I want to really speak for the entire community when I say 
I'm glad for the opportunity to host this hearing. Let me also 
welcome our excellent and diverse panel that is before us 
today. As you know, Madam Chair, congressional hearings are 
only as good as the witnesses and we have an excellent panel 
here today before us. I see many old friends and many New 
Mexicans and people traveling from the far reaches of the 
Intermountain West. It's wonderful to have Governor Richards 
Cabinet Secretary Joanna Prukop, Martin Heinrich, who we've 
worked with on a variety of issues in the Congress; Albuquerque 
City Counselor, former Lieutenant Governor Walter Bradley, who 
I had the opportunity to serve in State Government with. Stella 
Montoya, a farmer and rancher here in New Mexico and Colorado. 
I see Sterling Grogan with the Middle Rio Grande Conservancy 
District. And also a representative of the Zuni Tribe and 
Tweeti Blancett, a rancher from Northwestern New Mexico.
    Madam Chair, this series of field hearings is highlighted, 
the vital role played by NEPA in the development of Federal 
policy. Too many people seem to think that NEPA is designed 
simply to protect the environment from harm caused by 
development, or as some might phrase it, to stand in the way of 
development.
    Testimony already provided to this Task Force, however, has 
shown that this definition is at best incomplete, and at worst, 
one sided and inaccurate. The National Environmental Policy Act 
is important and essential because it sets up a process to 
protect local citizens from harm caused by uninformed Federal 
agencies. NEPA is a tool or perhaps it is better characterized 
as a shield, designed to force unwieldy and sometimes careless 
Federal bureaucracies to stop and listen to the advice of on-
the-ground private Americans.
    NEPA mandates only that Federal agencies consider the 
possibility they might be wrong or too narrowly focused before 
they charge ahead with plans that could have long-term 
unintended consequences.
    The Intermountain West provides plenty of examples where 
NEPA has worked to the benefit of people who live and work in 
this region. Here, in New Mexico, the Act was instrumental in 
mitigating the damage caused by the massive Sato Grande Fire. 
In 1999, Los Alamos completed a site-wide environmental impact 
statement or EIS that examined the risks of wild fire at the 
labs and spurred a variety of preventive measures, prior to the 
fire in 2000. As devastating as the fire was, the DOE said that 
the NEPA process in their words ``reduced the severity of the 
impacts of the fire and has served to be useful in planning 
recovery programs.'' DOE admitted, however, that their draft 
EIS did not analyze a wildfire accident because initial 
analysis did not show that the scenario was plausible. They 
acknowledged the comments provided by the public at the hearing 
on the draft EIS, focused attention on the issue. As a result, 
the final EIS included an accident scenario that closely 
mirrored the actual Sato Grande Fire.
    As many in the audience are well aware, the legacy of the 
now defunct Atlas mine near Moab, Utah is 15 million tons of 
radioactive mill tailings sitting in a massive pile on the west 
bank of the Colorado River. The Atlas mine was licensed in the 
1950s, prior to NEPA. Is it possible that this dire situation 
might well have been avoided had NEPA been in place?
    NEPA, however, did recently enable the process whereby more 
than a dozen Federal, state, tribal and local agencies, as well 
as thousands of local citizens, were able to work together to 
develop a remediation plan for the Atlas mine site.
    Last Monday, the Department of Energy announced plans to 
relocate the pile, the Federal and state lands some 30 miles 
from the river. It is not at all certain that such a resolution 
would have been achieved without NEPA guidance.
    Last, regardless, of where you may come down, regarding the 
expansion of oil and gas development in the West, NEPA at least 
provides a process whereby individual states and other 
interested parties are able to voice concerns and pursue 
adjustments to the Federal Government's plans. Nothing in NEPA 
provides that those who oppose drilling can stop it. Prior to 
NEPA, however, Federal agencies would have been able to allow 
drilling wherever it liked, whenever it liked and without being 
forced to at least think about local and cumulative impacts to 
public resources such as ground water and to consider less 
damaging options.
    In each of these instances and many more, the alleged delay 
caused by NEPA was actually the time it took for States, 
tribes, local communities and concerned citizens to have a 
voice in the process and in each case, the final outcome was 
better for it.
    It must be noted, Madam Chair, that the protections 
afforded by NEPA are available to everyone when they feel an 
agency has gone too far or not far enough. Conservationists use 
NEPA to influence government decisions and challenge those 
decisions in Court when they feel a Federal agency has failed 
to adequately consider resource protection issues.
    Similarly, industry uses NEPA to influence Federal policy 
and challenge those policies in Court, when they feel an agency 
has gone too far in limiting resource of development. For 
example, Boise Cascade and others cited a failure to comply 
with NEPA as part of their challenge to the Clinton 
Administration's roadless rule. Many of us who supported the 
goals of the roadless rule also supported the industry's right 
to make certain that the Clinton Administration had done its 
homework.
    This hearing provides a similar opportunity to listen to 
advice from Americans who don't have the fortune or sometimes 
say misfortune to work for the Federal Government. We will add 
the insight we gain here in New Mexico to that of the folks who 
testified in Washington State, Arizona and Texas. Together, we 
can ensure that NEPA continues working to protect as 
effectively and efficiently as possible, the interests of 
individual citizens and communities. Thank you.
    And with that, let me thank all of our witnesses for being 
here. I want to thank you for your time and effort. This is 
going to be a little bit of a laborious process, as I see it, 
Madam Chair, and so we want to thank you in advance for your 
attention and your patience. Now back to our Chair.
    Ms. McMorris. Thank you. Thank you very much. At this time, 
Mr. Cannon from Utah, for your opening remarks.

 STATEMENT OF HON. CHRIS CANNON, A REPRESENTATIVE IN CONGRESS 
                     FROM THE STATE OF UTAH

    Mr. Cannon. Thank you. In the first place, let me thank the 
witnesses who are going to be here. You have to sit here while 
a lot of other people talk around you, but we're looking 
forward to your individual contributions.
    Second, let me thank Congresswoman McMorris for having done 
a great job in chairing this effort. This is my second hearing 
outside of the state and it's a pleasure to be here.
    Third, let me say to my friend, Mr. Grijalva, that it's 
been a pleasure working with him on several issues and this is 
our first hearing on this together, maybe not the first hearing 
for me, but the first together.
    And then finally, let me make a couple of points about my 
friend, Tom Udall. Tom represents the Third District in New 
Mexico. I represent the Third District in Arizona and in fact, 
until we got redistricted recently, our Districts abutted, so 
we had much in common, including the Atlas tailings. That was a 
project that I initiated, the moving of those tailings, and 
here we are eight years later and we're finally making some 
progress on that.
    Tom and I both worked on the Radiation Exposure 
Compensation Act over a long period of time. I think Tom has 
taken the lead on the Democratic side. They've taken the lead 
on the Republican side, largely because of the problems we've 
had from the mine that produced the tailings on the river.
    I am pleased to be here with Tom who is thoughtful and 
reasonable and who just made an eloquent opening statement that 
I could have made in large part, with minor exceptions, and I 
think Tom, that really lays the groundwork for where we're 
going here. As I came in, I got one of these stickers. ``I 
Support NEPA Democracy in Action.'' And frankly, I was 
interested in the story about Los Alamos and the public input 
meant that the NEPA review they did was a better review. I am 
100 percent convinced that there's more IQ in the country than 
there is in Washington, D.C.
    Now, I may be different on that, but among other things, 
there are a lot of people outside of Washington, D.C. and they 
actually have practical experience, and the guys who create 
jobs and the guys who care about the environment say hey, wait 
a minute, there could be a fire. And so let's plan for it. That 
kind of input I think dramatically helps the process here.
    So what we're dealing with is democracy in action. We 
appreciate those of you with different points of view who are 
here. We recognize the people that believe that NEPA does block 
the development of jobs and there are people who believe that 
it should block the development of jobs. We hope that we can 
come to a new understanding of the Act, and maybe make some 
improvements. It's been an interesting and important part of 
our society for a long period of time now and I think it's time 
that we make some adjustments.
    And so let me just finalize by pointing this fact out. The 
really interesting issues of today, the interesting political 
issues are not partisan issues. They're not Republican or 
Democrat. They're not environmental or anti-environmental. 
They're issues that arise because of the progress we've made in 
science and technology. How do we do things better? It's not a 
matter of raping the environment.
    I mean Tom and I share a pioneer heritage and no one on 
earth can make statements more radical about the environment 
than Brigham Young, the guy who led the Mormons to Utah. And he 
was what you'd call a radical environmentalist. Our job is to 
see how we can improve the environment, at the same time make 
it easier because we have information so that people can 
develop jobs and do that in a balancing context, rather than in 
an antagonistic process.
    So we appreciate again the panel that's here with diverse 
views. We'll take those views into account and I hope among 
ourselves it doesn't become a left, right, Democrat, 
Republican, environmental, anti-environmental issue, but rather 
how do we do things better in America because there's lots of 
opportunities for improvement.
    Thank you, Madam Chair and I yield back.
    Ms. McMorris. He is really from Utah, even though I think 
you said at one point Arizona.
    Mr. Cannon. I really am from Utah. I love Arizona. I love 
New Mexico, but the Udall family, historically, is Arizona and 
that's the connection, although migrating long since and taking 
those incredible political genes with you.
    Mr. Udall. Don't forget about my grandmother who also was 
born in the little town of Luna, New Mexico in territorial 
days, so you know there's roots here, Arizona and New Mexico, 
Chris.
    Ms. McMorris. OK, yes, Mr. Grijalva from Arizona.

    STATEMENT OF HON. RAUL M. GRIJALVA, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF ARIZONA

    Mr. Grijalva. Thank you very much, Madam Chair, and thank 
you very much for all the hard work and time and commitment 
you've made to these hearings. I also want to acknowledge and 
appreciate being here with my two colleagues from Utah and New 
Mexico.
    Thank you, Madam Chair, I appreciate the opportunity to be 
here to discuss the National Environmental Policy Act. I 
welcome the witnesses and look forward to hearing their 
testimony today.
    The intent of NEPA is to compel the Federal Government to 
shine light on impacts of its action before they happen, before 
they take place. NEPA assures balance, common sense and a 
normalism in Federal decisionmaking.
    It is an essential tool for citizens to hold the government 
accountable. It is simply put, democracy. I don't believe there 
is a need to overhaul or get rid of NEPA because it works to 
keep big government in check. So far I'm not convinced that the 
examination of the National Environmental Policy Act has been a 
legitimate exercise. Instead, one gets the impression that it's 
being used to some extent as a pretense for a broader attack on 
both NEPA and other environmental laws in general.
    Many of the projects and examples that some rely upon as 
supposed horror stories of NEPA's inefficiencies and supposed 
abuses are grossly mischaracterized and often represent 
situations where NEPA had little to do with the delay that is 
being condemned.
    In particular, I'd like to set the record state about the 
Tucson Electric Power Company's proposal to run a transmission 
line through a national forest in my District to link up a grid 
system in Mexico. Statements have been made that NEPA has 
delayed this project for 10 years. This is absolutely untrue. 
The Arizona Corporation Commission, which approved the routing 
of transmission lines within the State of Arizona, is also 
responsible for permitting and making sure rural areas have 
access to electricity. They directed the power company 
servicing the border town of Nogales, Arizona to provide backup 
power to this community in late 1999.
    Tucson Electric Power, instead of proposing a small feeder 
line to the community, a local power plant, or other possible 
avenues for meeting the ACC mandate, proposed a massive, 345 kv 
transmission line that crossed the border, link up to the 
Mexico grid system. Only a very small portion of the power 
running through that line would have ever been used by the 
community of Nogales.
    TEP proposed several different routes for the transmission 
line from Tucson to the U.S.-Mexican border. The western route 
which was proposed to run through the national forest was 
approved by the state in 2002. At the time, the Forest Service 
and Department of Energy began the Federal NEPA process. The 
draft EIS came out in July 2003 and the final EIS was released 
January 2005.
    As should be clear from this time schedule, there has been 
no 10-year delay. The proposed transmission line would run 
through one of the last remaining unprotected roadless areas in 
Arizona and it's flatly inconsistent with the Forest Management 
Plan which has designated this area as one of high visual and 
scenic qualities. The Forest Service, to their credit, has been 
steadfast in upholding the protection of the area and 
recognized the proposed power line as simply incompatible with 
its management plan.
    NEPA is not the cause of the delay perceived by TEP. Tucson 
Electric Power is experiencing problems because of its own poor 
planning, prioritization of their profits over the needs of the 
community and unwarranted assumptions that they could build 
this line wherever they wanted to.
    The proponents of the project know that a smaller, backup 
power line could be built, likely without any opposition to 
serve the community's need. While a massive, bi-national 
transmission line may please the stockholders of the company, 
it will have highly negative effects on both local communities 
and the environment of Southern Arizona.
    I believe this is a good example for illustrating how NEPA 
works effectively. It forced the company to come clean about 
exactly what was being proposed and also allowed the Forest 
Service as the land management agency involved to voice its 
objections to the proposed line. NEPA worked as it was supposed 
to in this case, giving the public the information and the 
opportunity to participate in the process.
    With that, I yield back and I look forward to hearing from 
our witnesses today. Thank you, Madam Chair.
    Ms. McMorris. Thank you. I'm pleased that all of you are 
here. Congresswoman Heather Wilson is not able to join us but 
with us today is Tito Madrid who is her Outreach Coordinator 
and Mr. Madrid has some brief comments to share on her behalf.
    Mr. Madrid. Thank you, Madam Chairwoman, Congressman Udall 
and the distinguished members of panel. It's my pleasure and 
honor to be here on behalf of Congresswoman Heather Wilson to 
enter her remarks and thoughts into the record.
    Dear Task Force Chairwoman McMorris, Ranking Member Udall 
and Distinguished Members of the Committee. I would like to 
share a story with you, how the process of implementing NEPA 
needlessly hindered critically important Bosque rehabilitation 
in fire prevention projects on the Rio Grande.
    New Mexicans all remember two terrifying nights in June 
2003 when the Bosque burned through Albuquerque and the fire 
scare we had in the Bosque just north of Rio Rancho in the town 
of Bernalillo earlier this month. Non-native invasive species 
like Russian olive and saltpeter have overrun the riparian 
areas along the Rio Grande and have made the Bosque unnaturally 
dense.
    We cannot afford to continue to have these non-native 
species endanger our citizens, harm the fragile Bosque 
ecosystem, soak up our water and inundate our soil with salt. 
These invasive species are also highly flammable and have 
accumulated so significantly in the Bosque area that fires no 
longer burn at natural temperatures or rates, making them 
dangerous to fight and difficult to control.
    Additionally, approximately 40,000 nonfunctional Jetty 
Jacks are littered throughout the Bosque. Jetty Jacks 
contribute to the fire danger because they capture combustible 
leaves and branches. Jetty Jacks in the open spaced areas of 
the Bosque also pose a great danger to the fire fighters by 
making it hard for them to get in and more difficult to get out 
during fire emergencies.
    In May of 2004, Albuquerque Mayor Martin Chavez wrote me to 
express his frustration about the Bureau of Reclamation and the 
Corps nonemergency approach to removing nonfunctional Jetty 
Jacks from the Bosque. I shared his frustration. The delay was 
because the Corps and the Bureau of Reclamation were required 
to follow all NEPA-related laws before they could initiate on 
the ground activities.
    While the Corps was able to begin some projects almost 
immediately, like post-fire aerial photography and high 
resolution satellite imagery, large scale fuel reduction and 
replanting activities did not begin until September 2004.
    In contrast, state, tribal and local governments were able 
to begin large fuel reduction and replanting projects almost 
immediately.
    While the intent of the NEPA deserves praise, I think that 
it should be revised and updated so that we don't needlessly 
hinder critically important Bosque rehabilitation in fire 
prevention projects.
    I would recommend that we allow an expedited NEPA process 
like we did for the BLM and Forest Service with the healthy 
forest legislation of 2003 for higher priority for fuel 
reduction and post-fire rehabilitation activities administered 
by the Corps and Bureau of Reclamation so that Federal fire 
prevention and recovery efforts can keep pace with those on 
state, local and tribal lands.
    Thank you very much. Sincerely, Congresswoman Heather 
Wilson.
    [The letters submitted for the record by Congresswoman 
Heather Wilson and Albuquerque Mayor Martin Chavez follow:]
[GRAPHIC] [TIFF OMITTED] 22851.001

[GRAPHIC] [TIFF OMITTED] 22851.002

[GRAPHIC] [TIFF OMITTED] 22851.003


    Ms. McMorris. OK, thank you very much. I might just 
mention, this is a six-month Task Force. We'll have our work 
concluded in September and we're just over the six months 
collecting the information and testimony from a whole host of 
different people. We do have a web site for those who might be 
interested in submitting comments or thoughts to the web site. 
It's under the House Resources Committee and we welcome that. 
We've heard from thousands of people all across the country.
    In September, we will be determining from what we've heard 
as to whether we're going to make recommendations either to the 
Resources Committee or to the agencies as to how NEPA may be 
improved. But your testimony is very valuable to us and as you 
can see, we have a lot of people here today. So we're going to 
just start--I'm supposed to swear you in.
    It's the policy of the House Resources Committee to swear 
people in when they give testimony, so I'm going to ask you to 
stand and raise your right hand.
    [The witnesses were sworn.]
    Ms. McMorris. Let the record reflect that the witnesses 
answered in the affirmative.
    Thank you. Now you can see we have this little timer here. 
We've asked each of you to speak for five minutes and then 
we'll open it up for questions. I'm going to try to keep you as 
close to five minutes as possible, just to get this done in a 
decent amount of time, right?
    Green means go. I believe the yellow light comes on when 
you have a minute left. And then when it's red, I would ask you 
to wrap up. I think that's all I needed.
    Mr. Udall. Statements for the record?
    Ms. McMorris. Oh, your statements certainly will be 
submitted to the record. OK, are you ready?
    Ms. Prukop, I'm going to ask you to begin and then we'll 
just work our way down the panel.

 STATEMENT OF JOANNA PRUKOP, SECRETARY OF ENERGY, MINERALS AND 
NATURAL RESOURCES, OFFICE OF GOVERNOR RICHARDSON, SANTA FE, NEW 
                             MEXICO

    Ms. Prukop. Madam Chairwoman, Congressman Udall, Task Force 
members and fellow citizens, good morning and on behalf of 
Governor Richardson, welcome to New Mexico.
    My remarks will indeed be brief because I know you will be 
hearing from a number of panelists this morning. I have 
submitted a longer version of this speech for the record.
    I am delighted to have this opportunity to address the 
future of the National Environmental Policy Act. Because we are 
in New Mexico, I'd like to tell the story about monsters and 
heros that's part of the Native American heritage here. The 
1950 discovery of uranium in Grants, New Mexico by a Navajo 
shepherd named Patty Martinez set off a massive uranium rush in 
the Colorado Plateau. The Federal Government blessed the event 
by providing the mining industry with ample financial 
incentives, including guaranteed ore prices, production bonuses 
and generous allowances for haulage, mine development, fringe 
areas and grade premiums. As a result, the mining industry and 
their operations were quickly established at numerous locations 
throughout the Southwest. New Mexico alone produced nearly 350 
million pounds of uranium oxide from 1948 to 2001. That was 
some 38 percent of the nation's total production.
    The uranium mining boom changed forever the makeup of the 
industry. Larger and larger leases were needed. There were 
deeper and deeper mines, more and more facilities and workers 
and tragically, worse and worse impacts to the environment.
    Worst of all, it took a devastating toll on thousands of 
miners, millers, truckers and their families who were exposed 
to radiation levels as high as 750 times the 1950 standard. It 
wasn't long before those unwitting residents became victims of 
lung cancer, pulmonary fibrosis, tuberculosis, birth defects, 
irreversible kidney damage and other diseases.
    The Federal Government, the nuclear energy industry and the 
atomic weapons program proponents pronounced the uranium boom 
an unqualified boon to America's economy and national security.
    In the Southwest, however, the Navajos called it something 
quite different. They called it and please forgive my 
pronunciation, Leetso, or Yellow Monster. Like other Native 
Americans, the Navajos traditionally believed that naming a 
monster is one of the best ways to defeat it or control it. In 
addition, they believed that a hero was needed, someone who 
would gain the wisdom and skills necessary to slay this demon.
    I'm telling you this story because even though the uranium 
boom ended in the 1980s, the catastrophic legacies still haunts 
us in the form of radioactive mill waste, accidental releases 
of tailing solutions into major waterways, contaminated open 
pits and a legacy of human suffering.
    Unfortunately, the uranium rush was not an isolated 
phenomenon. It was just one of a horde of monsters that through 
the centuries have been set loose on our air, land, water and 
flora and fauna by individuals and industries, motivated more 
by profit than by environmental protection. They go by the 
names of negligence, apathy, greed, short sightedness and 
expediency over other values.
    Naming them, as the Navajo do, is just the first step in 
confronting them. The second and most important step is finding 
a hero to vanquish them. By the time the 1960s rolled around, 
it was obvious a hero needed to be found on the environmental 
front and NEPA, the National Environmental Policy Act, was 
conceived. Since its inception in 1969, NEPA has been the best 
and brightest weapon we've ever had in our fight against the 
kind of environmental degradation and destruction that was 
commonplace prior to the Act's inception.
    In its own words, NEPA was designed to ``encourage 
productive and enjoyable harmony between man and his 
environment.''
    I think we're all in agreement that that goal is indeed 
admirable, even heroic and worthy of our unqualified support 
which is why I support the mandate of this Task Force, to 
ensure that the original intent of NEPA is being fulfilled.
    At the same time, there are many here among us who would 
weaken the power of NEPA to carry out that goal. Their reasons 
generally fall under one of the following rationales. One, that 
NEPA is too cumbersome, time consuming and expensive. Two, that 
the process has evolved into an uncertain litigious ordeal. 
Three, that the Act is outdated and needs to be modernized. And 
four, that there is widespread misunderstanding and mistrust 
about the goal of NEPA itself.
    So I am glad that the Task Force is undertaking this 
comprehensive examination of NEPA. Toward that end I have 
handed in a longer version of my remarks that have some 
extensive comments in them about ways to improve it. I also 
have handed in an appendix to that document that gives very 
specific recommendations about ways to improve it and they have 
to do in terms of improving our process without rewriting or 
compromising the Act itself. Because if you read the Act 
itself, it's very well crafted.
    In closing, I urge you to listen closely to the entire 
range of viewpoints expressed here today in a hearing process 
that in itself is part of the NEPA process. It mirrors it. I 
think you'll find that witnesses here today all share a common 
value.
    Ms. McMorris. I really need to ask you to wrap up.
    Ms. Prukop. OK. With that, I just ask you to examine this 
important act, while at the same time realizing that its 
underlying intent is to ensure a sustainable economy, not only 
in this region, but in the country.
    [The prepared statement of Ms. Prukop follows:]

Statement of Joanna Prukop, Secretary, New Mexico Department of Energy, 
                     Minerals and Natural Resources

    Chairman Pombo, Task Force members and fellow citizens: Good 
Morning.
    I'm delighted to have this opportunity to address the future of the 
National Environmental Policy Act. Before I do that, though, I'd like 
to talk about monsters and heroes.
    The discovery of uranium in the Grants, New Mexico, area by a 
Navajo shepherd named Paddy Martinez in 1950 set off a massive 
``uranium rush'' in the Colorado Plateau. With the blessing of the 
federal government, it provided the mining industry with ample 
financial incentives including guaranteed ore prices, haulage and mine 
development allowances, production bonuses, and fringe area and grade 
premium allowances.
    As a result, mining operations were quickly established at numerous 
locations throughout the Southwest. New Mexico alone produced nearly 
350 million pounds of uranium oxide from 1948 through 2001--some 38 
percent of the nation's total production.
    The uranium-mining boom changed forever the makeup of the industry: 
larger and larger leases, deeper and deeper mines, more and more 
facilities and workers, and, tragically, worse and worse impacts to the 
environment.
    Worst of all, it took a devastating toll on the thousands of 
miners, millers, truckers and their families who were exposed to 
radiation levels as high as 750 times the 1950 standards. It wasn't 
long before those unwitting residents became victims of lung cancer, 
pulmonary fibrosis, tuberculosis, birth defects, irreversible kidney 
damage and other horrific diseases.
    The federal government, nuclear energy industry and atomic weapons 
program proponents pronounced the uranium boom an unqualified boon to 
America's economy and national security.
    The Navajos called it something quite different, though. They named 
it--please forgive my pronunciation--Leetso (lih-ZHO) or ``yellow 
monster.'' Like other Native Americans, the Navajos traditionally 
believed that naming a monster is one of the best ways to defeat it. In 
addition, they believed a hero was needed--someone who would gain the 
wisdom and skills necessary to slay the demon.
    I'm telling you this story because, even though the uranium boom 
went belly up in the 1980s, its catastrophic legacy still haunts us in 
the form of radioactive mill wastes, accidental releases of tailings 
solutions into major watercourses, contaminated open pit mines and a 
shameful legacy of human suffering.
    Unfortunately, the uranium rush was not an isolated phenomenon. It 
was just one of a horde of monsters that through the centuries have 
been set loose on our air, land, water, flora and fauna by individuals 
and industries motivated more by profit than by environmental 
protection. They go by the names of greed, negligence, apathy, short-
sightedness and expediency.
    Naming them is just the first step in confronting them, though. The 
second, and most important step, is finding a hero to vanquish them. 
I'm here to say that hero is NEPA, the National Environmental Policy 
Act.
    Since its inception in 1969, NEPA has been the best and brightest 
weapon we've ever had in our fight against the kind of environmental 
degradation and destruction that was commonplace prior to the Act's 
implementation. In its own words, NEPA was designed to ``encourage 
productive and enjoyable harmony between man and his environment.''
    I think we're all in agreement that goal is, indeed, admirable. 
Even heroic. And worthy of our unqualified and ongoing support. Which 
is why I support the mandate of this Task force, ``to ensure that the 
original intent of NEPA...is being fulfilled.''
    At the same time, there are many here among us who would weaken the 
power of NEPA to carry out that goal. Their reasons generally fall 
under one of the following rationales:
    1.  NEPA is too cumbersome, time-consuming and expensive;
    2.  The process has evolved into an uncertain, litigious ordeal;
    3.  The Act is out-dated and needs to be modernized; and
    4.  There is widespread misunderstanding and mistrust about the 
goal of NEPA itself.
    Let me address those criticisms one at a time.
    First, that NEPA is too cumbersome and time-consuming. Yes, the 
process is lengthy and complicated. But it couldn't be any other way. 
Public involvement takes time. Agency coordination takes time. 
Examination of alternatives takes time. Plain and simple, if we're 
going to stay true to the democratic heart of the Act, we've got to 
allow sufficient time for the process to take place.
    Is it overly cumbersome? Perhaps--but not because of the nature of 
the Act itself or the essential NEPA process. The real culprits are 
lack of cooperation among the players--public, industrial and 
governmental--and lack of transparency in the process, along with 
underfunding and understaffing.
    Regarding the first two points, everyone wins if everyone works 
together openly and fairly from the outset. NEPA fosters this kind of 
transparency by serving as a disclosure law, requiring agencies to 
present a range of alternatives and disclose the potential impacts of 
federal projects on the human environment. The process then allows the 
public to voice their concerns before a preferred alternative is 
selected or the project is approved. This process saves time and money 
and helps prevent litigation after the fact.
    Regarding the underfunding/understaffing issue, if you've got 
enough people on the ground conducting the investigations and 
facilitating the paperwork, the process will be expedited in a more 
timely and efficient manner.
    These cornerstone elements of public involvement--cooperation, 
proper funding, sufficient staff, common sense and public 
transparency--make NEPA function as intended by its framers, in a way 
that honors the intent of the act, keeps the process immune to short-
term political agendas, and protects the legal rights of the public.
    Secondly, that NEPA has become overly litigious. Well, that's why 
we have laws and courts in the first place: to clarify acceptable 
behavior and to penalize those who circumvent the law. Unfortunately, 
there always have been and probably always will be those who try to get 
around the laws of the land. In this democratic society, we the people 
have the right and responsibility to take them to task--and to court--
if necessary. NEPA doesn't create these conflicts; it just provides a 
process for resolving them. If NEPA didn't exist, the conflicts 
wouldn't go away, they would just reappear elsewhere.
    Some would say the sheer volume of litigations resulting from the 
NEPA process is proof positive that the process is working. That is, if 
we weren't taking the law-breakers to court, they'd be getting away 
with murder, environmentally speaking.
    Third, that the National Environmental Policy Act is out-dated. 
Since when is something useless simply because it's old? The Bill of 
Rights seems to work pretty well, and it's a good deal older than NEPA. 
Does it need modernizing? Probably. But not simply because it is 35 
years old or because it no longer serves its original purpose. If we're 
going to update NEPA, we should look at how improved knowledge, science 
and technology could help make the process more effective and 
efficient, not how they can be used to circumvent the Act or render it 
obsolete.
    Other improvements undoubtedly can and should be made to the NEPA 
process. But they are fine-tuning items, not wholesale changes. After 
all, we've now got 35 years of experience under our collective 
environmental-protection belt, and we all will benefit by applying 
those lessons to making the process more efficient and effective. 
That's why we're here today.
    Finally, that NEPA is misunderstood and mistrusted. To that 
criticism, I can only say that the solution lies in better telling our 
story, not in dumbing it down. People fear what they don't understand, 
so let's help them better understand NEPA. If we undertake a national 
effort to better educate the public on the requirements and benefits of 
the NEPA process, I guarantee they will be more involved in and 
supportive of the process. And that will result in environmental 
decisions that will more fully represent a consensus among citizens, 
industry and government. And isn't that the whole point of NEPA--to 
serve the common good of the country, its people and its resources?
    I'm glad this Task Force is undertaking this comprehensive 
examination of NEPA. Toward that end, I'm providing you a white paper 
outlining a number of specific recommendations. I'll leave this behind 
for you to consider as time allows. I urge you to listen closely to the 
entire range of viewpoints expressed here today. I think you'll find 
that they all share a common value: let's live our lives and conduct 
our business on this planet in a way that, as NEPA says, encourages 
productive and enjoyable harmony between us and our environment. That's 
the NEPA way. That's the democratic way. That's the right way.
    There are still monsters lurking in the shadows. Leetso still lives 
underground.
    The uranium industry once again is gearing up to launch a major 
mining effort in New Mexico and beyond. The market is strong, the 
incentive is there. The world's nuclear reactors require 70,000 metric 
tons of uranium oxide, and future demand could double that figure. 
Current world production is only around 60,000 metric tons, and 
national stockpiles are dwindling. The mineral's current market price 
stands at $29 a pound, the highest it's been since the 1970s, and it, 
too, could double in the near future.
    Uranium producers have been doing the math and at least 10 of them 
reportedly are looking into uranium leases in the state. Extraction 
could begin as soon as 2008. If monitored properly--that is, using the 
tools provided for us by NEPA--this renewed industry again could 
provide an economic bonanza for the State of New Mexico. Uranium 
extraction doesn't need to be a monster, spreading death and 
destruction as in the past.
    But we must stay vigilant. We simply cannot allow the uranium 
mining industry to write its own ticket and promise to police itself; 
we've seen what happens without an oversight mechanism such as NEPA. We 
must slay--or at least regulate--all those environmental monsters if we 
are going to protect our environment and provide future generations 
with the resources to restore and protect nature's balance and harmony.
    To do that, we need a hero. I say NEPA is that hero. I say let's 
sharpen NEPA's sword, not disarm it in the name of greed, negligence, 
apathy, short-sightedness or expediency.
    Thank you.
                                 ______
                                 

             Recommendations by Joanna Prukop, Secretary, 
    New Mexico Department of Energy, Minerals and Natural Resources

    The State of New Mexico supports the National Environmental Policy 
Act (NEPA) as a tested and successful tool for fulfilling the needs of 
human society by protecting environmental quality, ensuring 
coordination among federal, state and private interests, and improving 
project planning, design and development.
    NEPA is the primary federal law that allows the public to be 
involved in reviewing and commenting on federal land management and 
natural resource management projects. It serves as a disclosure law by 
requiring agencies to disclose the potential impacts of federal 
projects on the human environment.
    NEPA was a landmark legislative action and continues to be the 
cornerstone of proactive environmental national policy for a 
sustainable and enhanced future for all Americans.,
    While we believe there could be improvements made in the ways in 
which NEPA is implemented (see below), the State of New Mexico does not 
support modification or repeal of the Act itself. We recognize that 
this is not the focus of this Task Force, yet we are concerned by 
recent efforts to exempt certain actions from NEPA compliance. Such 
proposed exemptions include planning documents (USFS), oil and gas 
development (the Energy Bill), and wild land/urban interface projects 
(Healthy Forest Initiative). We think these actions will serve to 
degrade and weaken not only the spirit and intent of NEPA, but 
potentially the human environment itself for generations to come.
    Let me make it clear that we do not oppose per se these specific 
projects or activities, but we are opposed to allowing them to be 
implemented without adequate review. Exempting such potentially harmful 
activities from full environmental review and compromising the comment 
and appeal process would serve to impede both governmental and public 
participation.
    We applaud the Task Force for addressing the obstacles to efficient 
and effective implementation of NEPA. We concur that the complex 
implementation process can discourage the very public participation and 
review it was intended to advance. We therefore support actions that 
would help expedite the process and provide consistent application of 
NEPA whenever and wherever possible.
    To that end, we recommend the following improvements to the NEPA 
implementation process:
    1.  Standardize agency implementation. There are significant 
differences among agencies on how they apply NEPA, with each federal 
agency essentially implementing its own regulations, rules and policies 
for the application of the NEPA process. To solve this problem, major 
aspects of these processes should be standardized to ensure consistency 
while still allowing for flexibility in the more minor aspects of the 
process.
         In New Mexico, we experience these procedural problems on a 
daily basis in our work with federal agencies. This problem goes beyond 
the agency administrative level. Varying interpretation and 
implementation of NEPA also exists at the field office level. 
Specifically, there is great confusion in the application of 
categorical exclusions; decisions regarding development of 
Environmental Assessments (EAs) or Environmental Impact Statements 
(EISs); scoping methodologies; use of Proposed Actions in lieu of draft 
EAs; the timeframes for submitting comments; and the clear definition 
of what initiates a federal nexus.
    2.  Define categorical exclusions. The precise definition of 
categorical exclusions is confusing and, as a result, the exclusions 
themselves vary widely between agencies. Efforts to define broad 
categories of categorical exclusions should be made while allowing 
agencies the flexibility to identify and specify those exclusions that 
are unique to their mandates.
    3.  Release adequate project information during the scoping phase. 
One of the most valuable aspects of NEPA is the scoping process whereby 
project proponents invite the public to identify issues and concerns 
prior to project design and implementation. It is at this early stage 
that public input is most valuable to agencies as they undertake 
development of EAs or EISs.
         More often than not, though, the information released on the 
project during the scoping phase is inadequate to allow the public to 
make substantive comments. A glaring example of this is that the public 
is all too often presented with only a preferred alternative for a 
project, rather than the recommended range of alternatives. When this 
happens, everyone loses. Agencies sometimes are forced to go back to 
the drawing board because they have not presented viable alternatives. 
The public loses because they are excluded from exercising their 
rightful say in choosing from among the alternatives. And the entire 
NEPA process loses because it engenders a public perception that the 
process is a mere formality in which the outcome is a foregone 
conclusion. Such short-cutting of the process greatly weakens the 
decision-making tool and frequently adds to the overall project cost 
and timeline, as agencies are forced to backtrack to make up for the 
steps they skipped earlier in the process.
         We recommend that this aspect of the NEPA process undergo 
thorough review to ensure the inclusion of adequate information to 
encourage the substantive comments agencies seek during this point of 
project development.
    4.  Define ``reasonable'' project evaluation. In an effort to avoid 
what they perceive as overly detailed or otherwise unreasonable project 
evaluations, it appears some agencies are using NEPA as an excuse to 
not evaluate projects beyond a cursory level. This hurts the overall 
quality of the evaluation and shortchanges the public in their effort 
to learn all the pertinent information regarding a project. The cost of 
the process to the agency is certainly one factor contributing to this 
practice. But we believe a significant part of these costs is related 
to the public perception that 100 percent of project impacts must be 
disclosed. This is not the intent of NEPA.
         All NEPA requires is a ``reasonable'' level of project 
evaluation. Once this level is clearly defined, agencies will be free 
to provide the evaluation without feeling like they need to either bend 
over backward to satisfy overly demanding publics. When this standard 
is in place it will improve the efficiency and cost-effectiveness of 
NEPA preparation.
    The State of New Mexico urges the Task Force to implement these 
process-related recommendations. We believe that the National 
Environmental Policy Act was well-crafted in its original form and that 
these recommendations will make it even more effective in its goal to 
``encourage productive and enjoyable harmony between man and his 
environment.''
    Above all, the spirit and intent of NEPA must be retained.
                                 ______
                                 
    Ms. McMorris. Thank you.
    Mr. Lance.

    STATEMENT OF RYAN LANCE, ENDANGERED SPECIES POLICY ACT 
 COORDINATOR, OFFICE OF GOVERNOR FREUDENTHAL, CHEYENNE, WYOMING

    Mr. Lance. Madam Chairwoman, Ranking Member Udall and 
Members of the Committee, my name is Ryan Lance and I serve as 
the Endangered Species Act Policy Coordinator and as a natural 
resources policy analyst for Governor Dave Freudenthal of 
Wyoming.
    The Governor thanks you for the opportunity to provide 
testimony regarding the State of Wyoming's thoughts on the 
National Environmental Policy Act. As a state that is comprised 
of 50 percent Federal land, we have a vested interest in the 
processes that guide Federal land management and environmental 
decisions and therefore would like to take this time to share 
with you a few of our thoughts on NEPA's current application as 
well as areas that we feel should be improved.
    A growing number of opportunities for the participation of 
state, local and tribal governments, known as cooperating 
agency status, have become a reality in Federal land planning 
and management in Wyoming. In his January 30, 2002 Memorandum 
for the Heads of Federal Agencies, James Connaughton, Chairman 
of the Council Environmental Quality stated that: ``The 
benefits of enhanced cooperating agency participation in the 
preparation of NEPA analyses include: disclosing relevant 
information early in the analytical process; applying available 
technical expertise and staff supports; avoiding duplication 
with other Federal, state, tribal and local procedures; and 
establishing a mechanism for addressing intergovernmental 
issues. Other benefits of enhanced cooperating agency 
participation include fostering intra- and intergovernmental 
trust and a common understanding and appreciation for various 
governmental roles in the NEPA process, as well as enhancing 
agencies' ability to adopt environmental documents.''
    Wyoming has been the proving ground for increasing levels 
of cooperation between Federal agencies, state agencies and 
local governments relative to the Federal planning process 
using cooperating agency status. The number of Federal projects 
in Wyoming that have included cooperators is steadily 
increasing. Through cooperating agency status, we have been 
able to work with Federal agencies to craft documents that a 
more amenable to a wider range of stakeholders. Although 
cooperating agencies status has been viewed as a very positive 
step, there is room for improvement. While Federal agencies 
have become more agreeable to working with cooperators in 
recent years, there is occasionally a power struggle.
    Historically, Federal planning has been confined to the 
offices of the Federal agency undertaking the planning effort, 
at least until the plan was released for public comment. 
Cooperating agencies status has opened the system somewhat 
which Wyoming believes has resulted in more informed 
decisionmaking. Even so, at least concerning the BLM and 
several other agencies, the withholding of information from the 
general public until the public comment period, under the guise 
of the pre-decisional information label, leads to public 
distrust and, in our view, is an unnecessary precaution. By 
opening the planning process to the public, even before the 
public comment phase, distrust and apprehension will relax as 
the public will have a better understanding of the reasoning 
behind certain decisions.
    Wyoming State Planning Office, under the direction of 
Governor Dave Freudenthal, is working on ways to improve 
cooperating agency status in Wyoming. We have held several 
well-attended trainings for state agencies and local government 
officials to educate them on NEPA, Forest Service and BLM 
planning rules and regulations, and cooperating agency 
guidelines. We continue to work to be involved as early as 
possible and to have increased opportunities to provide 
comments, feedback and technical information.
    In sum, Wyoming applauds Federal, state and local 
governments for their mutual efforts under the auspices of 
cooperating agency status. We have made great strides and our 
proud of Wyoming's role as the leader in defining the future of 
cooperative planning and look forward to even further 
innovation in this regard.
    The Federal Government's role in planning, the incumbent 
disclosure of impacts through the NEPA process and the state 
and local governments' regulatory roles are intertwined. As a 
result, the NEPA process must account for state and local 
agencies and their needs to fulfill their regulatory missions. 
As responsible managers of Wyoming's air, water and wildlife, 
state and local governments continue to push the BLM and other 
Federal agencies for a greater level of specificity in their 
resource management plans which result from NEPA analysis. 
Without specificity for planned or allowable uses on Federal 
land, Federal managers have no defined course and hence are not 
made to be accountable, which leaves local authorities in an 
awkward position. Thus, Wyoming has been steadfast in its call 
for quantifiable and measurable objectives in the various 
Federal agency land management plans, which has resulted in 
some change in these planning documents. We will continue in 
our efforts. Regardless, without funding, these words will not 
convert to action. As such, Congress must do its part to fund 
the ongoing monitoring and implementation of those plans that 
proceed from the underlying NEPA analysis.
    While implementation and monitoring are somewhat separate 
from NEPA, dedication to cogent implementation and monitoring 
strategies is an underlying assumption to Federal, state and 
local participation in the NEPA process.
    In Wyoming, we have learned that the BLM intends to develop 
``Implementation Plans'' for its land use plans. The U.S. 
Forest Service employs a similar tool in its implementation 
efforts. But plans alone are not enough. A Federal dedication 
at the agency level to ongoing implementation is essential. The 
same is true with regard to monitoring.
    Ms. McMorris. Would you please summarize now?
    Mr. Lance. I can do that. In my prepared remarks, you'll 
also note I highlighted the need for greater socio-economic 
analysis and a greater expediency in the NEPA process as that 
process has become somewhat protracted in Wyoming with planning 
efforts taking over two to four years with which the current 
time value of money for energy development is hampering us.
    To conclude my remarks, NEPA, like the Endangered Species 
Act and other Federal environmental laws which influence NEPA's 
application is noble in purpose, but has become somewhat feeble 
in its application. States and local governments can help to 
bolster their Federal counterparts and have through the Federal 
policy of a cooperating agency status. But beyond NEPA 
disclosure lays the mostly fallow ground of implementation and 
monitoring. The State of Wyoming would ask that these important 
aspects of Federal management move higher in the priority chain 
in terms of Federal dedication and funding.
    Additionally, we would ask that greater attention be paid 
to socioeconomic impacts and those mitigation impacts when and 
where appropriate.
    Thank you for the opportunity to supply testimony today.
    [The prepared statement of Mr. Lance follows:]

  Statement of Ryan Lance, Endangered Species Act Policy Coordinator, 
                  Office of Governor Dave Freudenthal

    Honorable Members of the Committee on Resources:
    Thank you for the opportunity to provide testimony regarding the 
State of Wyoming's thoughts on the National Environmental Policy Act 
(NEPA). As a state that is comprised of 50 percent federal land, we 
have a vested interest in the processes that guide federal land 
management and environmental decisions and therefore would like to take 
this time to share with you a few of our thoughts on NEPA's current 
application as well as areas that we feel should be improved.
Cooperating Agency Status
    A growing number of opportunities for the participation of state, 
local and tribal governments, known as cooperating agency status, have 
become a reality in federal land planning and management in Wyoming. In 
his January 30, 2002 Memorandum for the Heads of Federal Agencies, 
James Connaughton, Chairman of the Council of Environmental Quality 
(CEQ) stated that:
    ``The benefits of enhanced cooperating agency participation in the 
preparation of NEPA analyses include: disclosing relevant information 
early in the analytical process; applying available technical expertise 
and staff supports; avoiding duplication with other Federal, State, 
Tribal and local procedures; and establishing a mechanism for 
addressing intergovernmental issues. Other benefits of enhanced 
cooperating agency participation include fostering intra-and 
intergovernmental trust and a common understanding and appreciation for 
various governmental roles in the NEPA process, as well as enhancing 
agencies' ability to adopt environmental documents.
    The importance of cooperating agency status is highlighted by its 
prominence in the National Environmental Policy Act and the Council of 
Environmental Quality regulations (see NEPA, Title 1, Section 102 (E) 
and CEQ regulations 1501.1 (b), 1501.2(c), 1501.6(a)(2), 1502.2(f)). 
Beyond NEPA and CEQ direction, there have been several other policy 
directives regarding cooperating agency participation. For example, the 
Bureau of Land Management (BLM) issued an instructional memorandum on 
August 20, 2004 (IM No. 2004-231) titled, ``The Scope of Collaboration 
in the Cooperating Agency Relationship.'' Cooperating agency status has 
also been defined in a BLM proposed rule posted in the Federal Register 
on July 20, 2004 (RIN 1004-AD57). Certainly, these efforts are 
highlights in the federal governments attempts to meet President Bush's 
August 26, 2004 Executive Order of Cooperative Conservation.
    Wyoming has been the proving ground for increasing levels of 
cooperation between federal agencies, state agencies and local 
governments relative to the federal planning process using cooperating 
agency status. The number of federal projects in Wyoming that have 
included cooperators is steadily increasing. Through cooperating agency 
status, we have been able to work with the federal agencies to create 
documents that are more amenable to a wider range of stakeholders. 
Although cooperating agency status has been viewed as a very positive 
step, there is room for improvement. While federal agencies have become 
more agreeable to working with cooperators in recent years, there is 
occasionally a power struggle.
    Historically, federal planning has been confined to the offices of 
the federal agency undertaking the planning effort--at least until the 
plan was released for public comment. Cooperating agency status has 
opened the system somewhat, which Wyoming believes has resulted in more 
informed decision making. Even so, at least concerning the BLM and 
several other agencies, the withholding of information from the general 
public until the public comment period, under the guise of the pre-
decisional information label, leads to public distrust and, in our 
view, is an unnecessary precaution. By opening the planning process to 
the public, even before the public comment phase, distrust and 
apprehension will relax as the public will have a better understanding 
of the reasoning behind certain decisions.
    The State Planning Office, under the direction of Governor Dave 
Freudenthal, is working on ways to improve cooperator agency status in 
Wyoming. We have held several well-attended trainings for state 
agencies and local government officials to educate them on the National 
Environmental Policy Act, Forest Service and BLM planning rules and 
regulations, and cooperating agency guidelines. We continue to work to 
be involved as early as possible and to have increased opportunities to 
provide comments, feedback and technical information.
    In sum, Wyoming applauds federal, state and local governments for 
their mutual efforts under the auspices of cooperating agency status. 
We have made great strides and are proud of Wyoming's role as the 
leader in defining the future of cooperative planning and look forward 
to even further innovation in this regard.
The Need for Specificity
    The federal government's role in planning, the incumbent disclosure 
of impacts through the NEPA process and the state and local 
governments' regulatory roles are intertwined. As a result, the NEPA 
process must account for state and local agencies and their needs to 
fulfill their regulatory missions. As responsible managers of Wyoming's 
air, water and wildlife, state and local governments continue to push 
the BLM and other federal agencies for a greater level of specificity 
in their resource management plans, which result from NEPA analysis. 
Without specificity for planned or allowable uses on federal land, 
federal managers have no defined course and hence are not made to be 
accountable, which leaves local authorities in an awkward position. 
Thus, Wyoming has been steadfast in its call for quantifiable and 
measurable objectives in the various federal agency land management 
plans, which has resulted in some change in these planning documents. 
We will continue in our efforts. Regardless, without funding, these 
words will not convert to action. As such, Congress must do its part to 
fund the ongoing monitoring and implementation of the plans that 
proceed from the underlying NEPA documentation.
Implementation and Monitoring
    While implementation and monitoring are somewhat separate from 
NEPA, dedication to cogent implementation and monitoring strategies is 
an underlying assumption to federal, state and local participation in 
the NEPA process.
    In Wyoming, we have learned that the BLM intends to develop 
``Implementation Plans'' for its land use plans. The U.S. Forest 
Service employs a similar tool in its implementation efforts. But plans 
alone are not enough. A federal dedication at the agency level to 
ongoing implementation is essential. Furthermore, as in the NEPA 
process, state and local participation in implementation is also 
critical. So too is funding.
    Similar to implementation planning, there are often intricate 
monitoring plans defined under NEPA documents. Unfortunately, these 
monitoring directives are not always reduced to action. In turn, state 
and local regulatory agencies, such as the Wyoming Department of 
Environmental Quality Air, Water and Land Quality Divisions, are left 
with little information to direct future management and regulation, 
which could potentially compromise energy and other development. Again, 
dedication to the process, state and local involvement and funding are 
critical to federal agency efforts to monitor. This is especially true 
when speaking in terms of adaptive management, which is making inroads 
into many planning efforts. For adaptive management to work, agencies 
must have baseline and ongoing monitoring data so we know what we are 
adapting to; without both, adaptive management is useless.
Socioeconomic Concerns
    Appropriately, ecological concerns remain the main focus of most 
NEPA analysis. Today, socioeconomic impacts are becoming more and more 
important to states and local governments, especially as those impacts 
relate to community sustainability. As Western cities, towns, counties 
and states rely on federal lands to feed their economies, especially in 
terms of energy developments, the impacts of federal decisions on these 
economies must be fully understood, to allow government and private 
industry to respond accordingly.
Expediency
    It takes an incredible amount of time to complete environmental 
impact statements. The state of seemingly perpetual delay has serious 
impacts, given the time value of money, especially relative to energy 
development. Oftentimes these delays are derived from the fact that the 
federal agency employees working on the document remain responsible for 
their ``day jobs'' on top of writing complicated environmental 
documents.
    The State of Wyoming suggests expediting and segregating NEPA 
processes in areas of high energy development. As one suggestion, 
federal agencies could bring in a group of agency specialists as a core 
team that is tasked with nothing other than to work with the field 
offices to develop environmental documents. While much has been made of 
federal NEPA private contractors, who are tasked with writing NEPA 
documents and providing technical insight, they have only provided 
marginal efficiency gains while adding the burdens of oversight. The 
key is to provide internal, rather than external, support.
Conclusion
    To conclude my remarks, NEPA, like the Endangered Species Act and 
other federal laws, is noble in purpose but has become somewhat feeble 
in application. States and local governments can help to bolster their 
federal counterparts and have through the policy of cooperating agency 
status. But beyond NEPA disclosure lays the mostly fallow ground of 
implementation and monitoring. The State of Wyoming would ask that 
these important aspects of federal management move higher in the 
priority chain in terms of federal dedication and funding. 
Additionally, we would ask that greater attention be paid to 
socioeconomic impacts and mitigation of those impacts when and where 
appropriate. Finally, Wyoming would ask for a stepped-up pace of the 
development of NEPA documents. Thank you for allowing us to supply 
testimony today.
                                 ______
                                 

     Response to questions submitted for the record by Ryan Lance, 
  Endangered Species Act Policy Coordinator, Office of Governor Dave 
                              Freudenthal

    1.  Question: You recommend a ``stepped up pace'' for NEPA 
documentation. Do you think if there were timelines designed to 
expedite the preparation of NEPA documents that the intent of NEPA 
could still be fulfilled?
    Answer: The intent of NEPA was not to create a process that was so 
time and resource intensive that it prohibits the beneficial work of 
the federal government. The purpose of the National Environmental 
Policy Act of 1969 as defined in Sec. 2 is to ``declare a national 
policy which will encourage productive and enjoyable harmony between 
man and his environment, to promote efforts which will prevent or 
eliminate damage to the environment and biosphere and stimulate the 
health and welfare of man; to enrich the understanding of the 
ecological systems and natural resources important to the Nation.''
    Implementation of NEPA means compliance with Sec. 102 of the Act 
which defines how federal agencies are to proceed in implementing the 
purpose. Complying with Sec. 102 was never intended to actually cause a 
delay or to impede federal agency attempts to achieve the defined 
purpose of the act. The mention of a ``stepped up pace'' to NEPA 
documentation in the Governors Office's comments was mainly aimed at 
some of the more egregious examples of delay that we have experienced 
in Wyoming, which have ranged from three to six years in some 
instances.
    2.  Question: I agree that cooperating agencies play an important 
role in the NEPA process. Can you suggest some criteria to ensure that 
the appropriate entities, not just anyone with an interest, are 
afforded cooperating agency status?
    Answer: CEQ has set parameters for who should be considered a 
cooperating agency. That list includes: ``any Federal agency other than 
a lead agency which has jurisdiction by law or special expertise with 
respect to any environmental impact involved in a proposal (or a 
reasonable alternative) for legislation or other major Federal action 
significantly affecting the quality of the human environment. The 
selection and responsibilities of a cooperating agency are described in 
Sec. 1501.6. A State or local agency of similar qualifications or, when 
the effects are on a reservation, an Indian Tribe, may by agreement 
with the lead agency become a cooperating agency.'' This definition is 
adequate and clearly sets an appropriate criteria for who can and 
should be afforded cooperating agency status. Regardless of who is 
considered to be cooperating agency, the development of NEPA documents, 
particularly within the Bureau of Land Management, should be more open 
and less constrained by the overly burdensome proscriptions related to 
the dissemination of ``pre-decisional information,'' as discussed in 
the Governors Office's previous comments.
    3.  Question: Before the planning process is opened up, isn't it 
necessary to address issues such as litigation?
    Answer: It is necessary to address the possibility of litigation, 
however federal agencies should not be hampered by a fear of 
litigation. There will never be a point at which litigation is absent 
from federal actions. However, Resource Management Plans and Forest 
Plans that adequately address potential impacts and cumulative impacts 
and provide for a reasonable level of assurance as to how proposed 
actions will take place on the ground go a long way to reduce potential 
litigation. Doing projects right the first time by making them a 
priority and allowing for direct input from cooperating agencies and 
the general public is the best option to curtail litigation in the 
future. Openness of such process has served the Forest Service well in 
Wyoming. A similar template should be employed by the BLM.
                                 ______
                                 
    Ms. McMorris. Thank you.
    Mr. Heinrich.

   STATEMENT OF MARTIN HEINRICH, ALBUQUERQUE CITY COUNCILOR, 
                    ALBUQUERQUE, NEW MEXICO

    Mr. Heinrich. Thank you, Madam Chairwoman. Thank you for 
this opportunity to testify regarding the National 
Environmental Policy Act. My name is Martin Heinrich and I'm 
currently a City Councilor in Albuquerque, New Mexico and I'm 
the Vice Chair of the Albuquerque-Bernalillo County Water 
Utility Authority. I was formerly the Executive Director of the 
Cottonwood Gulch Foundation, where I managed considerable 
property adjacent to the Cibola National Forest and I was 
responsible for educational activities permitted on Federal 
public land. I'm also an active user of our Federal public 
lands for hiking, hunting and camping.
    Because of this background, I'm been acutely aware of the 
NEPA process for about 10 years now. I participated in scoping 
and comment periods and I have often relied upon NEPA to keep 
me abreast of Federal management activities and projects that 
impacted places where I worked or recreated. As a councilor, I 
see NEPA as an important avenue of communication between local 
government and the Federal Government.
    In my written testimony, I elaborate extensively on how 
NEPA was used effectively and successfully to plan a major 
drinking water project for the Albuquerque area. Without NEPA, 
I hear that many important constituencies, including farmers 
and conservationists would not have had an adequate seat at the 
planning table. The NEPA process engendered community buy in 
for an inherently controversial and difficulty project. The 
final outcome was of the higher caliber, due to this process.
    I consider NEPA to be primarily a planning tool. This law 
gives us a clear and predictable planning framework that 
citizens and communities can use in order to participate in 
decisions affecting local public lands and these decisions have 
a huge impact on local economies and cultural and recreational 
resources. Many citizens and local governments rely upon the 
structure that NEPA provides to understand the impacts and 
alternatives associated with a nearby federally funded project.
    Under NEPA, a citizen or local government can advocate for 
or against a proposal, but more importantly, we can provide 
substantive information or knowledge that can help the Federal 
agency make a better decision. As an elected official, I have 
often seen citizens offer very innovative solutions and I have 
witnessed legislation amended or rewritten because of the 
public testimony that was provided. NEPA provides that feedback 
avenue for Federal projects.
    This participation in the public process is the democratic 
discourse that we should always strive to encourage in 
government. NEPA usually works so well that most elected 
officials are not aware of it. I know that some projects have 
been delayed during the NEPA process, but challenges to actions 
sought under NEPA are typically only successful when NEPA is 
not followed, such as if an agency refused to consider viable 
alternatives or does not consider pertinent information. You 
cannot successfully challenge the outcome of a NEPA process 
simply because you disagree with the final decision. When our 
citizenry and our local governments are provided quality 
information, and accurate analysis of potential impacts, real 
alternatives and an opportunity to offer their unique 
perspective, then challenges are rarely mounted and are 
typically not successful.
    NEPA should not be streamlined. A reduction or elimination 
in the mandatory public comment periods, for example, would 
result in more frustration, increased litigation and the 
elimination of the most important part of this law, the 
involvement of our citizenship and local communities in the 
Federal decisionmaking process.
    If there is a problem with NEPA that problem lies more in 
NEPA's implementation than within the Act itself. I believe 
that more consistent application, better training of agency 
personnel responsible for that implementation, better and more 
consistent use of technology to increase the public 
participation, and resources for citizens and local governments 
who are involved in the NEPA planning process would be the most 
prudent improvement of this act. My opinion on this matter is 
not altogether inconsistent with the findings of the NEPA Task 
Force which was formed by the President's Council on 
Environmental Quality, or CEQ, in 2002 and 2003. Their analysis 
included a series of regional roundtable discussions where the 
CEQ consulted with representatives of state and local 
government, tribes, industry and citizen groups with the goal 
of gathering more input on NEPA, much like the stated intent of 
today's Task Force. And I trust that you will review their 
findings.
    To conclude, I believe NEPA is among our best tools for 
planning Federal projects. It gives voice to our citizenry and 
provides a predictable avenue for democratic involvement and 
our government. While I would advocate for more consistent 
implementation and better resources for those involved in the 
NEPA process, I do not see the need for wholesale changes 
within the law.
    Thank you for this opportunity to testify on the National 
Environmental Policy Act.
    [The prepared statement of Mr. Heinrich follows:]

             Statement of Martin Heinrich, City Councilor, 
                  District 6--Albuquerque, New Mexico

    Madame Chairwoman, thank you very much for inviting me to testify 
on the role of the National Environmental Policy Act (NEPA). My name is 
Martin Heinrich. I am currently a city councilor in Albuquerque, New 
Mexico and I am also the Vice Chair of the Albuquerque-Bernalillo 
County Water Utility Authority. In addition, I was formerly the 
Executive Director of an educational program called the Cottonwood 
Gulch Foundation, where I managed considerable property adjacent to the 
Cibola National Forest and where I was responsible for planning and 
managing educational activities permitted on federal public land. 
Finally, I am an active user of our federal public lands for 
recreational purposes, including hiking, hunting and camping.
    Because of my personal history, I have been acutely aware of the 
NEPA process for about ten years now. I have participated in scoping 
and comment periods and I have often relied upon NEPA to keep me 
abreast of federal management activities and projects that could impact 
places where I worked or recreated. More recently, as a councilman NEPA 
has helped keep me informed of federally funded projects that impact 
the City of Albuquerque. Typical examples of federal activities that I 
would have an interest in through my elected role could include Army 
Corps of Engineer management activities in the Rio Grande and federally 
funded water projects that are related to our drinking water supply.
    I consider NEPA to be primarily a planning tool. This law gives us 
a clear and predictable planning framework that citizens and 
communities can use in order to participate in decisions affecting 
local public lands-decisions having a huge impact on local economies as 
well as cultural and recreational resources. Many citizens and members 
of local government rely upon the structure that NEPA provides to 
understand the possible impacts of a nearby federally funded project 
and what alternatives may exist. Under NEPA, a citizen or local 
government can advocate either for or against a proposal, but more 
importantly we can provide substantive information or knowledge that 
can help a federal agency make a better decision. As an elected 
official, I have often seen citizens offer solutions that had not 
occurred to me or my colleges. I have more than once witnessed 
legislation changed, completely reworked, or amended based on 
information provided from public testimony. NEPA provides that public 
feedback avenue for federal projects. It is a well defined avenue 
whereby information from citizens and local government can affect how 
our federal tax dollars are spent and what occurs on our federal public 
lands. This allows citizens to actively participate in their government 
and their environment. That participation in the public process is the 
democratic discourse we should always strive to achieve in government.
    I believe it is important to note that the planning process NEPA 
provides for is content neutral. If a proposal has serious 
environmental impacts or if a majority of the comments about a proposal 
object to the proposed action, that in no way guarantees that the 
proposed action will be stopped or even delayed. NEPA does ensure that 
alternative actions were considered and that the potential impacts of 
the proposed action are shared with our citizenry. Local citizens have 
a right to understand what the federal government is proposing in their 
back yard, and what the consequences of those proposals will be.
    In my experience, NEPA typically works so well that even most 
elected officials are not aware of it. I know that some projects have 
been delayed during the NEPA process, but it is my understanding, and I 
freely admit that I am not lawyer, that challenges to actions sought 
under NEPA are typically only successful when NEPA was not followed. 
For example when an agency refuses to consider viable alternatives or 
does not consider pertinent information. You cannot successfully 
challenge the outcome of a NEPA process simply because you disagree 
with the final decision that was made. When our citizenry and local 
governments are provided quality information, an accurate analysis of 
potential impacts, real alternatives, and an opportunity to offer their 
unique perspective, then challenges are rarely mounted and are 
typically not successful.
    If there is a problem with NEPA, I would suggest that it lies more 
in its implementation than within the Act itself. I believe that more 
consistent application, better training of agency personnel who are 
responsible for implementation, better and more consistent use of 
technology to increase public participation, and resources for citizens 
and local governments who are involved in the NEPA process, would be 
the most prudent courses of action to improve the process of 
implementing federal projects. I believe that my opinion in this matter 
is not altogether inconsistent with the findings of the NEPA Task Force 
which was formed by the President's Council on Environmental Quality, 
or CEQ, in 2002 and 2003. Their analysis process for NEPA included a 
series of regional roundtable discussions. During these, the CEQ 
consulted with representatives of state and local government, tribes, 
industry, and citizen groups with the goal of gathering input on NEPA 
that is much like the stated intent of today's Task Force. I trust that 
this Task Force has reviewed or will review the findings of those 
groups.
    I'd like to end my testimony with a local example where I think 
NEPA provided the best possible framework from which to plan a 
difficult project that had serious environmental consequences, was 
controversial and expensive, and which would impact large numbers of 
highly diverse stake holders. NEPA was the planning framework for the 
implementation of the San Juan Chama drinking water diversion project 
that is designed to transition the Albuquerque Bernalillo County Water 
Utility Authority away from complete reliance on a shrinking aquifer 
through the utilization of surface water rights. This required the 
construction of a new diversion dam on the Rio Grande River. While this 
diversion structure is located within Albuquerque's city limits, it is 
important to realize it is also within one of the most productive 
irrigated farm districts in the state and is on a desert river that is 
home to several endangered species and has a strong public constituency 
of its own. Consequently, this project had the potential to impact 
every drinking water customer in Albuquerque and the water utility 
served portion of Bernalillo County, a large number of farmers, 
considerable wildlife including two endangered species, and thousands 
of local citizens who value the river for its wildlife, recreational 
and scenic values.
    In a project of this magnitude and difficulty there is no perfect 
outcome. Some stakeholders will not be happy with the end result, no 
matter what it ends up being. That said, I can say in all honesty that 
we have a better product because of the NEPA planning process and I 
cannot offer an alternative process that would have yielded better 
results or any additional consensus. And while some citizens would 
still prefer that this diversion was not built, their influence on the 
structure that was built helped ensure that it is among the most 
flexible, safe and wildlife friendly structures of its kind. I feel 
strongly that it is a positive thing to hold meetings where you must 
listen to the concerns of ordinary citizens, farmers, conservationists 
and utility ratepayers. NEPA provided a very predictable and well 
defined process for us to gather that public input and to respond to 
it. I believe we have a better result today because we listened to 
everyone's concerns. I also believe that we have considerably more 
community ``buy in'' for the project because we went through this 
planning process.
    To conclude, I believe NEPA is among our best tools for planning 
federal projects. It gives voice to our citizenry and provides a 
predictable avenue for democratic involvement in our government. While 
I would advocate for more consistent implementation and better 
resources for those involved in a NEPA process, I do not see the need 
for any wholesale changes to the law. The only way to dramatically 
streamline NEPA would be to reduce or eliminate the mandatory public 
comment periods. This would result in more frustration, more 
litigation, and the elimination of the most important part of this law, 
the involvement of our citizenry in our federal decision making 
process.
    Thank you this opportunity to offer testimony on the National 
Environmental Policy Act.
                                 ______
                                 
    Ms. McMorris. Thank you.
    Mr. Brown.

 STATEMENT OF DAVID R. BROWN, REGIONAL REGULATORY ADVISOR, BP 
                AMERICA, INC., DENVER, COLORADO

    Mr. Brown. Good morning, Chairwoman McMorris and members of 
the Task Force, I am Dave Brown, Regulatory Advisor for the 
Rocky Mountain Region for BP America.
    Thank you for the opportunity to appear before you today to 
discuss the many facets of NEPA.
    BP is the largest producer of oil and natural gas in the 
United States. As one of the leading Federal leaseholders and 
gas producers in the Rocky Mountains, Wyoming, Colorado and New 
Mexico, BP supplies roughly 6 percent of the nation's daily 
natural gas needs from this region. Here in New Mexico, BP 
produces over 400,000 cubic feet of natural gas per day from 
some 2,200 wells, most of which are located in northwest New 
Mexico near Farmington. We have a work force of roughly 500 
employees and contractors and we are grateful for the work they 
do every day to provide this viable resource for the nation.
    BP and its predecessor companies have been active 
participants in numerous NEPA analyses ranging from 
environmental assessments to project-level environmental impact 
statement throughout the Rocky Mountains and we also 
participate in the Federal land use planning process.
    For the record, we believe the NEPA statutory framework is 
sound. However, the current system is mired in procedural and 
legal obstacles which must be addressed to ensure the 
objectives of NEPA are met in a timely and effective manner.
    I personally have been involved in the NEPA process since 
the 1970s when the CEQ regulations were issued. During that 
time I've seen a trend of increased complexity with the 
analysis, voluminous text, endless litigation, Court decisions 
that impose a continuous stream of changing procedural 
requirements and escalating costs. I've also found that project 
proponents and agency staff are overwhelmed with trying to 
simply manage the NEPA process. All of this requires us to ask 
a fundamental question: is the current NEPA process really 
effective in determining whether the quality of the human 
environment is being significantly affected by Federal agency 
decisions? My written comments go into much more considerable 
detail I have previously provided. However, this morning I will 
try to summarize a few of my points.
    First, I would like to talk about how alternatives are 
chosen for analysis in a NEPA document. CEQ regulations require 
that agencies present the environmental impacts of the proposal 
and ``reasonable alternatives''. It also requires that 
appropriate mitigation be addressed. Too often, we see 
alternatives presented that are technically and economically 
unachievable. Alternatives need to be based on mitigation 
measures that can actually be achieved, taking into 
consideration economic and technical aspects.
    Another area that requires improvement is the agency's 
concern of working with the project proponents or consulting 
with stakeholders. During the NEPA process especially this is a 
problem because the Federal agencies believe that these ex 
parte communications must be strictly adhered to. This approach 
is leaving stakeholders out of the NEPA process for extended 
periods of time while the analysis is underway and this can 
extend for months and possible a year and beyond.
    Because of the absence of interaction between stakeholders 
and the agency for extended periods, the NEPA analysis can 
become severely out of date or not reflect the interest of the 
stakeholders. When the draft document comes out, and it's out 
of date or not current, with the best information available, it 
must be reworked, supplemented or in some cases started over. 
To address this issue, we recommend the NEPA analysis be exempt 
from ex parte communications to ensure the validity of data and 
to acquire new information as necessary.
    Another area of concern is litigation in the context of 
NEPA. I have several recommendations in my detailed comments, 
but essentially the burden of proof should be shifted to the 
appellants from the agency to prove the analysis was not 
conducted using the best available science.
    Finally, I will highlight an area of concern that I know is 
familiar to you as funding of agency staff. All too often 
project proponents are asked to pay for the cost of preparing 
EAs and EISs. While in some cases, this is a voluntary 
commitment by the project proponents, there's still a 
significant delay in getting a third party contractor analysis 
through the process, mainly because the agencies have so many 
other responsibilities to fulfill with a limited number of 
resource specialists.
    Some of the ideas that could be used to address this could 
be a temporary detail, a NEPA coordinator from a less busy 
agency office. It also may make sense for an agency to have a 
central NEPA coordination office to help facilitate larger NEPA 
projects.
    Finally, allow project proponents who wish to voluntarily 
fund a NEPA position, allow that to take place, but ensure the 
individual is clearly accountable in writing to the agency and 
not the applicant.
    Chairwoman McMorris and the members of the Task Force, 
thank you again for the opportunity to participate in this 
hearing. I fundamentally believe that if we have the clear and 
predictable process for energy development, it will encourage 
investment and create the attendant economic and environmental 
benefits.
    Thank you.
    [The prepared statement of Mr. Brown follows:]

         Statement of Dave Brown, Regional Regulatory Advisor 
                (Rocky Mountain Region), BP America, Inc

    Good morning, Chairwoman McMorris and members of the Task Force. I 
am Dave Brown, Regulatory Advisor for the Rocky Mountain Region for BP 
America.
    Thank you for the opportunity to appear before you today to discuss 
the many facets of NEPA.
    Before I get into the substance of my remarks, I would like to 
provide a bit of context about BP.
    BP is the largest producer of oil and natural gas in the United 
States. As one of the leading federal leaseholders and gas producers in 
the Rocky Mountains--Wyoming, Colorado and New Mexico--BP supply's 
roughly 6 percent of the nation's daily natural gas needs from this 
region.
    BP and it's predecessor companies have been active participants in 
numerous NEPA analyses ranging from Environmental Assessments to 
project-level Environmental Impact Statements throughout the Rocky 
Mountain region.
    For the record, BP believes the NEPA statutory framework is sound. 
Subsequent fine-tuning found in the Council of Environmental Quality 
(CEQ) regulations from the late 1970's was also beneficial, but that 
process has only taken place one time. While many would agree that 
wholesale changes to NEPA are needed, we believe it is also 
advantageous to focus on updating and revising the Council of 
Environmental Quality (CEQ) regulations. CEQ has been conducting an 
ongoing review of their regulations for several years and we would urge 
the Committee to assess the status of those efforts and strongly 
encourage the CEQ to update and revise their regulations to address 
current issues.
    The current system is mired in procedural and legal obstacles which 
must be addressed to assure that the objectives of NEPA are met in a 
timely and effective manner.
    I have personally been involved in the NEPA process since the 
1970's when the CEQ regulations were issued. During that, there has 
been a trend of increased complexity with the analyses, voluminous 
text, endless litigation, court decisions that impose a continuous 
stream of changing procedural requirements, and escalating costs. 
Project proponents and agency staff are overwhelmed with trying to 
simply manage the NEPA process. All of this requires us to ask a 
fundamental question: Is the current process really effective in 
determining whether the quality of the human environment is being 
significantly affected by federal agency decisions? Our comments below 
address this particular question and what improvements could be made to 
enhance the process while still meeting the basic objectives of NEPA.
Specific Recommendations:
    IMPROVING HOW ALTERNATIVES ARE DEVELOPED: One area that is in need 
of refinement is how alternatives are chosen for analysis in a NEPA 
document. CEQ regulations at 40 CFR 1502.14 require that agencies 
present the environmental impacts of the proposal and ``reasonable 
alternatives'' for comparative analysis. It also requires that 
appropriate mitigation be addressed in the proposed action and the 
alternatives. While public scoping is an integral part of the NEPA 
process, too often we see alternatives presented that are technically 
and economically unachievable. Too many alternatives outside the realm 
of ``reasonable'' are suggested and analyzed on the pretext of 
providing an acceptable ``range of alternatives''. CEQ regulations 
allow agencies to eliminate alternatives if they also provide an 
explanation as to why those alternatives were not analyzed in detail. 
Agencies should adopt an additional qualifier for ``reasonableness'' 
that includes economic and technical feasibility. This would encourage 
a healthy dialogue among the agency, the public and the project 
proponents. Alternatives would be better focused on mitigation measures 
that can actually be achieved, taking into consideration economic and 
technical aspects that are critical to achieving the goal of balancing 
the development of natural resources and environmental protection.
    RECOMMENDATION: Require an ``economic and technical feasibility'' 
test as part of developing alternatives for NEPA analysis.
    Conversely, a new problem has arisen regarding the lack of a 
reasonable range of alternatives in recently initiated BLM land use 
planning efforts. Due to budget constraints, the range of alternatives 
has been limited to four management options--(1) no action (current 
management), (2) no or few restrictions, (3) a purportedly ``balance-
driven'' alternative, and (4) a ``preservation'' alternative. While 
this appears reasonable, this approach serves to severely limit the 
creation of a reasonable alternative that incorporates both protection 
and conservation, at least in the draft environmental impact statement. 
While the agency claims it can mix and match aspects of the four 
alternatives into a new ``preferred alternative'' in the final EIS, 
this has not been our experience over the last two planning cycles. 
Moreover, it forces the public, which is largely unaware of the land 
use planning process, to pick discreet pieces of each alternative to 
formulate an alternative they support. When this occurs, there is 
confusion and frustration about the alternatives the public can 
support.
    RECOMMENDATION: Agencies must be required to include an adequate 
range of alternatives that will allow the public to clearly identify a 
preferred management approach.
    ENHANCING COMMUNICATION WITH STAKEHOLDERS: Another area that 
requires improvement is agency consultation with stakeholders. Federal 
agencies are going overboard to prevent what they believe to be ex 
parte communication. This approach is leaving stakeholders out of the 
NEPA process for extended periods while the analysis is underway. This 
is a critical flaw in the current NEPA process that must be corrected 
if a timely and thorough NEPA analysis is to be achieved in a cost 
effective manner. Ex parte communication is any written or verbal 
communication initiated outside of regularly noticed public comment 
period between an official with decision making authority and one or 
more of the parties concerning subject material which is under 
consideration by that official. While ex parte communication is an 
important issue that must be considered, federal agencies have taken 
the concept to a new level for EIS preparation. Agencies now typically 
restrict communication with interested parties during preparation of an 
EIS after public scoping is completed. This eliminates a healthy and 
productive dialogue between the agency and stakeholders which sometimes 
extends into many months, and sometimes years. Because of the absence 
of interaction between stakeholders and the agency for extended 
periods, the NEPA analysis can be become severely out of date or not 
reflect the intentions of the stakeholders, especially a project 
proponent. Not only do economics change, but technological advancements 
are dynamic and may not be brought forward until the next public input 
scenario occurs, which will be when the public review of the draft 
document occurs. When the draft document becomes out of date or is not 
current with the best information available, it must be reworked, 
supplemented, or in some cases, started over. This isolation of 
stakeholders also increases the volume of public comments during the 
draft review which adds more time to generating a Final EIS since those 
comments must be responded to as part of the process. Thus this overly-
restrictive definition of ``ex parte'' communication causes undue 
delays and is unnecessarily expensive.
    RECOMMENDATION: Exempt NEPA analysis from ex-parte provisions or 
require the agencies to periodically consult with interested parties to 
ensure the validity of data or to acquire new information. Allowing 
constructive dialogue with those who have information during 
preparation of any NEPA document is a positive approach that would 
benefit the process.
    CATEGORICAL EXCLUSION REVIEW: We recommend that an expedited review 
of certain actions with little or no environmental impact be 
implemented as part of the NEPA process. The use of a ``categorical 
exclusion'' is provided for in NEPA. Granting a categorical exclusion 
does not mean an agency ignores environmental aspects of a project; 
rather, this is a mechanism whereby an agency VERIFIES that impacts 
associated with the proposed action are minimal or non-existent. If the 
exclusion criteria are met, no detailed analysis would be required. If 
the criteria are not met, the project would be taken to the next level 
of NEPA analysis--an Environmental Assessment as provided for in the 
CEQ regulations. This process would work well with the permitting 
process for federal actions since virtually all new land disturbances, 
particularly those involving oil and gas, require a permit. Integrating 
categorical exclusions into the permitting process would allow an 
expedited review of projects that are typically routine and have little 
or no environmental impact. There are any number of land use activities 
and approvals related to oil and gas that could be subject to 
categorical exclusion provided that site conditions or resource 
concerns support exclusion, including:
      Issuance and modifications of regulations, orders, 
standards, notices to lessees and operators, and field rules, where the 
impacts are limited to administrative, economic or technological 
effects and the environmental impacts are minimal.
      Establishment of terms and conditions in Notices of 
Intent to conduct geophysical exploration of oil and gas pursuant to 43 
CFR 3150 where road building and long term (greater than one year) 
surface damage is not expected.
      Approval of an Application for Permit To Drill (APD) in 
the following circumstances: 1) re-entry or modification of an existing 
well bore, 2) approval of a new well drilled from an existing well pad, 
and 3) approval of an in-field development well where multiple prior 
environmental assessments (EAs) have found no significant impacts and 
the well is within the scope of an existing Reasonable Development 
Scenario (RFD).
      Approval of on-lease linear facilities (e.g., when placed 
in existing corridors or areas of prior disturbance).
      Exceptions to lease terms or conditions of approval that 
do not result in or involve significant new surface disturbance.
    RECOMMENDATION: Provide for the use of categorical exclusions for 
actions when the size or the nature of the proposal will not have 
significant impacts requiring the need for an Environmental Assessment.
    TIMELY UPDATING OF LAND USE PLANS: A priority to better maximize 
NEPA-related project analysis is to allow tiering these analyses when 
plan updates are required. Agencies are not currently utilizing 
existing NEPA analyses when they begin plan revisions. Rather, they are 
essentially beginning from scratch, which is an unfortunate waste of 
time and resources. For example, today's land use management plans must 
include a ``Reasonably Foreseeable Development'' for future projects. 
If a new project does not fall within the anticipated future scenarios, 
which is likely with older, dated land use plans, the land use 
management plan must first be amended before a new project-level 
analysis is approved It would make much more sense in terms of time and 
cost for agencies to allow project-level documents to be used to update 
land use plans. This approach would require an EIS to be prepared for 
all major projects, evaluating the cumulative effects of the proposed 
activity and outlining mitigation measures to ameliorate potential 
adverse impacts. This would allow more efficient use of agency 
resources and allow projects to proceed based on a project-level 
environmental analysis. In those cases where the land use plan must be 
amended to reflect the project-level analysis, that process should be 
competed as soon as practicable.
    RECOMMENDATION: Use project-level NEPA analysis to update land use 
plans, particularly for reasonable and foreseeable development aspects 
of the land use plan.
    TIME FRAME ACCOUNTABILITIES: Excessive time to prepare NEPA 
analyses must be addressed, particularly for Environmental Impact 
Statements and the extraneous text linked to those Statements. 
Presently, there is no specific time frame for preparing a NEPA 
analysis, nor is there a required time frame for completion of project-
level NEPA documents. Even a routine Environmental Assessment can take 
6 months to a year. An Environmental Impact Statement typically, 
requires in excess of 3 years, based upon our experience. One reason 
for this appears to be the agency's concerns about writing documents 
that are litigation/appeal proof. Too often, to achieve this objective, 
documents are being written with an apparent emphasis on quantity, 
which some believe equates to quality that will defend the analysis 
against legal challenge. CEQ regulations developed in the 1970s were 
intended to avoid exactly what occurs now, large voluminous documents 
unfriendly to all who read them and especially to those who must apply 
their provisions. What took maybe a hundred to a few hundred pages to 
analyze in an EIS in the early 1980s now is trending toward 2 volumes 
and a thousand pages of text. The CEQ regulations state that an EIS 
should be between 150 pages and 300 pages long. Today, opening chapters 
that address the purpose, combined with the needs statement and project 
description, are often more than 150 pages long. Thus it is not 
surprising that so much time is taken in preparing NEPA analyses. BP 
recommends:
    1)  NEPA analysis should return to the original intent described in 
the CEQ regulations for both EA's and EIS's.
    2)  Specific time frames should be incorporated into CEQ 
regulations governing preparation of an EA or EIS.
    3)  Portions of NEPA documents that add little value to impact 
determination should be eliminated or combined. For example, the 
``Affected Environment'' describes current conditions. While this 
information is useful, it is often voluminous and does not need to go 
into the detail currently required in NEPA documents. Instead, it could 
be combined and summarized within the Environmental Consequences and 
Cumulative Impact portion of a NEPA document, significantly reducing 
the volume of the document.
    4)  CEQ should be established as a clearinghouse for monitoring 
court decisions that affect procedural aspects of preparing NEPA 
documents. If a judicial proceeding or agency administrative decision 
mandates certain requirements, CEQ should be charged with the 
responsibility of analyzing its effects and advising appropriate 
federal agencies of its applicability.
    5)  More strenuous standards should apply to litigants of NEPA 
analyses as described below.
    6)  Agencies should use the best scientific evidence AVAILABLE to 
conduct an analysis. Agencies should not need to generate new 
information to ``bullet proof'' their analyses in an attempt to avoid 
litigation/protests. Our experience is that generating such new 
information has done nothing to prevent litigation but adds significant 
time and costs to the preparation of a NEPA document.
    7)  When preparing Environmental Assessments, avoid increasing the 
level of analysis to that required for an Environmental Impact 
Statement. EAs should be written to determine whether an EIS is 
warranted, not just simply as an abbreviated version of one. EAs should 
address selected resource concerns and disclose mitigation measures in 
a brief and concise manner.
    RECOMMENDATION: Establish accountability for time frames and 
implement measures that avoid long drawn-out analyses and voluminous 
documents.
    FUNDING OF AGENCY STAFF: Congress needs to provide adequate funding 
for federal agencies to prepare NEPA analyses. The ability to timely 
complete a NEPA analysis hinges on resources to complete the process. 
All too often, project proponents are asked to pay for the costs of 
preparing EAs and EISs. While in some cases this is a voluntary 
commitment by project proponents, there is still a significant delay in 
getting a third party NEPA analysis through an agency, often because 
the agency has so many other responsibilities to fulfill with a limited 
number of resources specialists--many of whom are responsible for 
reviewing the work of the third party contractor--that hinders any real 
progress that might be gained by using third party contractors. 
Congress must provide adequate funding for staffing not only for actual 
preparation of NEPA analyses instead of using outside contractors, but 
also allowing sufficient agency staff to manage third party 
arrangements. If the agency staff charged with NEPA responsibilities 
are carrying a full work load, temporarily detailing a NEPA coordinator 
from a less busy office should also be considered. It would even make 
sense for each agency (or a group of agencies) to have a central NEPA 
coordination staff to help facilitate NEPA projects. This group could 
resolve conflicts between contractors and the agency and provide 
guidance on how the agency is to proceed. Further, if project 
proponents want to voluntarily fund a NEPA position working directly 
for the agency, this should be allowed provided the individual is 
clearly accountable in writing to the agency and not the applicant.
    RECOMMENDATION: Congress should strive to ensure adequate funding 
exists for federal agencies to meet the requirements of NEPA.
    UNENDING LITIGATION: Legal appeals of NEPA analyses are a reality 
of the current process. We believe the right to appeal an agency 
decision must be preserved, but changes are required to minimize 
frivolous appeals. The following recommendations, which could require 
amendments to the NEPA statute, might be considered:
      Currently, the burden of proof is placed on the agency to 
prove the analysis conducted was thorough and complete. An improvement 
in the law would require appellants to prove that the evaluation was 
not conducted using the best available information and science.
      Require appellants to post bonds to cover the cost of 
legal fees and administrative costs of agency employees who must 
respond to litigation as part of the process. The bond, or a prorated 
portion of it, would be forfeited if the appellants are unsuccessful.
      Provide a streamlined process to review litigation, 
possibly including a requirement that litigation is required to be 
reviewed within a certain time frame, particularly for projects of 
national importance such as energy/utility projects.
    RECOMMENDATION: Shift the burden of proof to the litigants/
appellants when a NEPA analysis is challenged and provide for a 
streamlined judicial process when litigation occurs.
    PROVIDE CONSISTENT PROCEDURES FOR THIRD PARTY CONTRACTORS: It is 
important to develop NEPA templates for third party contractors when 
preparing EAs and EISs. The use of third party contractors can be 
efficient and should save money and many hours of time for agency 
employees. Unfortunately, this process is being hindered by changes in 
format and content requirements--not surprising considering the amount 
of judicial and administrative reviews to which NEPA analyses can be 
subjected. The judicial and administrative reviews often lead to new 
policies for meeting NEPA requirements. If these new expectations are 
not clearly communicated to the third party contractor, the analysis 
can be embroiled in multiple re-revisions which are wasteful and 
costly. Agencies should develop templates for third party contractors 
showing what should be included in a NEPA analysis based upon the 
ongoing inevitability of judicial and administrative decisions and 
agency policies.
    RECOMMENDATION: Federal agencies should develop templates for third 
party preparation customized to the agencies' need to meet NEPA 
standards with input from the CEQ if deemed necessary by the federal 
agency.
    INCONSISTENT NEPA STANDARDS: Inflated NEPA standards frequently 
occur when a project proponent is paying for a project-level NEPA 
analysis. A common practice when proposing a new project is to review 
and incorporate existing NEPA format and content that have been 
prepared by the agency. Many times the existing documents can provide 
valuable insight into the expectations that must be met to prepare an 
acceptable NEPA analysis. However, it can be frustrating, particularly 
if the project proponent elects to use a third party contractor, to 
suddenly learn that the ``bar has been raised'' and the privately-
funded analysis must meet significantly higher standards than is 
required of a publicly-funded analysis. BP is more than willing to fund 
the appropriate level of environmental analysis when a third party 
contractor option is exercised; however, the analysis and level of 
detail should be consistent with internal agency documentation and 
analyses that have previously been deemed acceptable.
    RECOMMENDATION: The level of NEPA analysis for private sector 
projects, regardless of whether a third party contractor is used, must 
be commensurate with that required for internal agency analyses when 
the projects are relatively identical.
    Chairwoman McMorris and members of the Task Force, thank you again 
for the opportunity to participate in this hearing. I want to applaud 
you and the Congress for taking valuable time to focus on this 
important matter. We are at an important cross-road with regard to 
energy supply and demand in the United States. I fundamentally believe 
that if we have a clear and predictable process for energy development, 
it will encourage investment and create the attendant economic and 
environmental benefits. I hope the examples that I have highlighted 
give you a better sense of how this well-intentioned statute and 
regulatory framework is being applied today and some ways to enhance 
the process for the future. I wish you the best with the rest of your 
hearings and I look forward to the Task Force findings.
                                 ______
                                 
    Ms. McMorris. Thank you very much.
    Ms. Blancett.

                 STATEMENT OF TWEETI BLANCETT, 
                       AZTEC, NEW MEXICO.

    Ms. Blancett. Buenos dias y bienvenidos. Welcome to New 
Mexico. We're glad to have you and thank you for asking me to 
participate.
    I'm Tweeti Blancett. I'm a member of a sixth generation 
ranching family in northwest New Mexico. I am a New Mexican, an 
American, a Republican, and a conservative.
    Conservative means to conserve.
    As a good American rancher on Federal lands, our role has 
always been to protect the land. I challenge anyone to find a 
better watchdog for our Federal grazing lands than the American 
rancher. Shutting ranchers and farmers out from having 
meaningful input, by weakening NEPA is unacceptable.
    NEPA was enacted to protect the environment with the human 
aspect as one of the most important parts of the Act. NEPA in 
Northwest New Mexico has been ignored by the Bureau of Land 
Management and industry, as it relates to the cumulative 
impacts to the air, to the water, to the wildlife and the 
people of the largest producing natural gas field in North 
America.
    I would like you to look at this map that I've provided. 
It's in the white notebook. The map tells the story of our 
ranch which due to oil and gas development has had the greatest 
impact to the surface of any grazing allotment in the entire 
United States. BLM has allowed 35,000 wells in the San Juan 
Basin and thousands more wells will be permitted and drilled in 
the next 20 years. Yearly, we send billions of dollars to the 
state and the Federal coffers from San Juan County and billions 
more in record profit for energy corporations.
    Yet, to date, no one has looked at the long term impacts to 
the land that have already occurred and will continue to occur 
for generations to come. Or how to clean up the contamination, 
repair the roads, fix the erosion, tackle the epidemic of 
noxious weeds while the energy companies are here to aid in the 
cleanup.
    NEPA has not been followed in Northwest New Mexico. The 
Administration, Congress, BLM and industry are responsible for 
allowing the damage and impacts to the land, to the water, to 
the wildlife and the ways of life across the Rocky Mountain 
West and they're responsible for the cleanup.
    Sacrifice areas have been created by ignoring NEPA across 
the Rocky Mountain West, Northwest New Mexico and Southwest 
Colorado and our ranch in the San Juan Basin. In Wyoming, you 
have the Parachute and in Colorado you have the Parachute and 
the Silt Area. And in Wyoming, you have the Anticline, the 
Jonah Field, and the Powder River Basin.
    They're impacted terribly by the consequences of not 
following the rules that are in place. Multi-use and split 
estate concepts are not working. NEPA must be broadened to 
include regulations to plan and protect our special places. In 
New Mexico, the Otero Mesa and the Valle Vidal; in Colorado, 
the Roan Plateau and the HD Mountains; and in Wyoming, the 
Upper Green River Basin and Montana's Rocky Mountain Front 
Range.
    Many sitting in this room today and across the West are no 
longer Republicans and Democrats first; liberals and 
conservatives, environmentalists or ranchers. We're Americans 
who want our lands protected. We are forming alliances with 
those we have not always agreed with and we're standing up and 
we're speaking out.
    I extend an invitation to each of you to view our ranch 
first hand and see what the rest of the Intermountain West will 
look like if we don't strengthen, enforce and utilize NEPA and 
our other regulations in the manner in which they were 
intended.
    Thank you.
    [The prepared statement of Ms. Blancett follows:]

    Statement of Treciafaye ``Tweeti'' Blancett, Blancett Ranches, 
                           Aztec, New Mexico

    Thank you for the opportunity to speak on ``The Role of NEPA in the 
Intermountain States''.
    I am Tweeti Blancett, a member of a 6th generation ranching family 
in northwest New Mexico. I am a New Mexican, an American, a Republican, 
and a Conservative.
    Conservative means to conserve.
    As a good American Rancher on Federal lands, our role has always 
been to protect the land. I challenge you find a better watchdog for 
our Federal Grazing Lands than the American Rancher. Shutting ranchers 
and farmers out from having meaningful input, by weakening the NEPA 
process is unacceptable.
    NEPA was enacted to protect the environment with the human aspect 
as one of the most important part of the ACT. NEPA in Northwest New 
Mexico has been ignored by BLM and Industry, as it relates to the 
cumulative impacts to the air, land, water, wildlife, and people of the 
largest producing natural gas field in North America, the San Juan 
Basin.
    The map you have tells the story of our ranch, which, due to oil 
and gas development, has the greatest impact to the surface of any 
grazing allotment in the United States.
    BLM has allowed 35,000 wells in the San Juan Basin and thousands 
more wells will be permitted and drilled in the next 20 years. Yearly 
we send BILLIONS OF DOLLARS to Federal and State coffers from San Juan 
County and Billions more in record energy corporate profits.
    Yet, to date NO ONE has looked at any of the long term impacts to 
the land surface that have already occurred and will continue occur for 
generations to come. Or how to clean up the contamination, repair the 
roads, fix the erosion, and tackle the epidemic of noxious weeds while 
the energy companies are here to do the cleanup.
    The Administration, Congress, BLM, and Industry are responsible for 
allowing the damage and impacts to the land, water, wildlife, and ways 
of life across the Rocky Mountain West and they are responsible for the 
cleanup.
    Sacrifice areas have been created by ignoring NEPA across the Rocky 
Mountain West: northwest New Mexico and southwest Colorado--the San 
Juan Basin the largest natural gas producing field in North America and 
our 6 generation ranch, in western Colorado--the Parachute/Silt Area, 
in Wyoming--the Anticline, Jonah Field, and The Powder River Basin.
    The multi-use and split estate concepts are NOT WORKING. NEPA must 
be broadened to include regulations to PLAN and PROTECT our special 
places that are not yet impacted but threatened--Otero Mesa and the 
Valle Vidal in New Mexico, the Roan Plateau and HD Mountains in 
Colorado, the Upper Green River Basin in Wyoming and Montana's Rocky 
Mountain Front. Other wise you will see other special landscapes come 
to look like the one on the map you are holding of our ranch.
    Many sitting in this room and across the West are no longer 
Republican and Democrats, Liberals or Conservatives, Environmentalist 
or Ranchers first. WE are Americans who want our lands protected. WE 
are forming alliances with those we have not always agreed with.
    WE are standing up and speaking out.
    WE may not have the money, but WE do have the votes.
    I extend to each of you an invitation to view our ranch first hand 
see what the rest of the Intermountain West will look like if we don't 
strengthen, enforce, and utilize NEPA and our other regulations in the 
manner they were intended.
    Thank you for this opportunity.
                                 ______
                                 
    Ms. McMorris. Thank you.

STATEMENT OF WALTER BRADLEY, FORMER LIEUTENANT GOVERNOR OF NEW 
                   MEXICO, CLOVIS, NEW MEXICO

    Mr. Bradley. Thank you, Madam Chairwoman, members of the 
Committee and especially Congressman Udall for having this 
hearing today in the great State of New Mexico and giving us 
this opportunity.
    I believe that of all the people throughout the country 
that you've had before you, I think I bring a very unique and 
I'm quite certain unheard story about the process of NEPA and I 
propose a couple of simple solutions that I believe will 
eliminate most of the disagreements and the lawsuits that seem 
to be attracted through this act.
    You see, as Lieutenant Governor of the State of New Mexico, 
I believe I'm the only agency in the Nation who has had the 
opportunity to have joint lead with a Federal agency on 
environmental impact statements. I don't believe any other 
state has ever taken this on. I know at the Lieutenant 
Governors Conference we polled all of the states, none of them 
had ever done it. It is a part of the regulations. It is 
certainly implied in the Act and to date, since no one took it 
on, I just thought it would be a great idea, but I will tell 
you that when I did ask for that permission I was denied, more 
than once. And it took quite a bit of pressure to finally get 
it taken.
    My written remarks will tell you about the MOU and how we 
did that, but historically the Federal agencies have always run 
the EISs and EAs themselves internally. And then, of course, 
during the comment periods and at the conclusion of the comment 
period, we lobbed grenades at it and we questioned every single 
piece of data and how did this happen and where did you get 
this, and what happens?
    You see, there's a shroud that's already been alluded to by 
previous witnesses. There is a shroud of hidden agendas maybe 
where some of that data may have come from and may not. The 
project that I took joint lead on on behalf of the State of New 
Mexico and it was run through my office was Rangeland 
Management. It was the grazing guidelines for the State of New 
Mexico and it did include all aspects, water, everything, 
economics, etcetera.
    We entered into the MOU. We recognized that the Secretary 
of the Interior had the final say, but we also agreed in that 
MOU that at the conclusion, if there was a disagreement, we 
could make on behalf of the state an official disagreement of 
what that finding was. In this case, and it was a long drawn 
out affair, took about two years to complete the project, 
during that process, when we ended up, we only had one major 
disagreement that we concluded with. We formed a panel of all 
the shareholders. They worked throughout the whole process. I 
was co-chair with the Secretary and we both had our people that 
stood for it. But I have to tell you that that experience gave 
us a great eye opener and it brought all of the shareholders 
and it opened up all of the data that everybody was 
questioning.
    So I would propose to you my first action that I think you 
should take is in the Act itself where it says, it alludes to 
the cooperation of states, I would recommend that any state 
that requests joint lead for an environmental impact statement 
should be granted that request, not a permissive clause, but a 
mandatory clause that if they ask for it, they'll get it. That 
allows us to also open up the cooperating agency status that is 
sometimes been held tightly by the Federal agencies. In our own 
case, they did not want to allow county, each and every county 
to have the opportunity, but we insisted and won. They wanted 
to just go with the county association. So it opens up a lot of 
doors and eliminates a lot of problems.
    The biggest discrepancy that we're going to run into and I 
know you do is in the science. I have to tell you that the 
science is the biggest question. I've given you many examples. 
The first one I ran into was the Mexican wolf. That is one of 
your attachments. How in the world did the State of New Mexico 
end up from this map showing the lobo, I'm sorry, the lobo 
territory being in the southern half to this map that says it 
covers half the State of New Mexico with no supporting science 
to make that happen?
    We also had in the process of the grazing guidelines, I was 
approached to do--put gates on every fence line, two foot wide, 
and have open gates for the migration of wildlife. The data 
that was provided ended up being an OVR, and that OVR was two 
pages long and all it said was and I asked what OVR meant, it's 
ocular vehicular reconnaissance, is who did that. In my 
business in real estate they call that a curb size appraisal 
and that's exactly what this was, so it was thrown out. It 
wasn't used. We don't put gates on fence lines.
    I would ask you that we more clearly define science. It is 
also in the act. It is also in the regulations. But it is very 
broad and I would recommend to this Committee that you look at 
inserting the words ``sound, peer-reviewable science,'' not 
some data that was used on the silvery minnow, as an example, 
that the Court had to order that came out to be a master thesis 
by someone who didn't even go on to become a doctorate. That is 
also in your package.
    Ms. McMorris. Mr. Bradley, would you summarize, wrap up?
    Mr. Bradley. I certainly will. In summation, I believe that 
when a true partnership through joint lead is created between 
the states and the Federal Government and decisions are based 
on sound, peer-reviewable science, most all of the arguments 
and disagreements and most importantly the costly litigation 
that has, in reality, harmed the environment becomes moot.
    Unfortunately, to date, neither of these two items are the 
normal practice within Federal agencies, so I hope you will 
make these changes for the betterment of our environment and 
our country.
    Thank you very much for this opportunity.
    [The prepared statement of Mr. Bradley follows:]

      Statement of Former Lieutenant Governor Walter D. Bradley, 
                           Clovis, New Mexico

    Madam Chairwoman, members of the Task Force and Committee, and 
especially Congressman Tom Udall, thank you for holding a field hearing 
in New Mexico on this issue so vital to our rural economies and 
families in the West, and for the opportunity to testify before you.
    As the Lieutenant Governor of New Mexico from 1995 through 2003, I 
had the unique opportunity to lead our state through an Environmental 
Impact Statement (EIS) process under the National Environmental Policy 
Act (NEPA) as ``Joint Lead'' with the U.S. Department of the Interior 
(DOI). Although Joint Lead status is most certainly implied in NEPA and 
is defined in the implementation regulations 40 CFR parts 1500-1508, it 
has seldom, if ever, been used until the late 1990's. In fact I was 
told New Mexico was the first state ever to be granted official Joint 
Lead by a federal agency.
    The project was to prepare federal Grazing Guidelines for New 
Mexico and covered all aspects of grazing including water, 
contamination, endangered species, wildlife, historical and cultural 
effects as well as economics, all of which are required by the Act. The 
State of New Mexico entered into a MOU (memorandum of understanding) 
with the DOI recognizing the State as co-leader and sharing all data 
and resources available on all subject matter and co-operate in a 
totally open atmosphere. We recognized that the Secretary of the 
Interior had the authority to make final decisions, but if there was 
disagreement by the State, then the State could make those 
disagreements known as a part of the official final finding.
    I recommend for your consideration an amendment to the National 
Environmental Policy Act the following: ``Any state that requests Joint 
Lead for an Environmental Impact Statement (EIS) or Environmental 
Assessment (EA) to be conducted in their state will be granted such 
request.:
    There are various places such language could be inserted, some are:
      Title I section 101 [42 USC 4331] Item A, middle of the 
paragraph, sentence discussing Ain cooperation with state and local 
governments.@
      Create a new subsection (b) and reorder as needed.
    This action by Congress was supported by a resolution adopted by 
the National Conference of Lieutenant Governors in July, 2000 
(Attachment A).
    During my years as Lieutenant Governor I encountered many 
complaints about numerous endangered species. The one consistent 
discrepancy with every issue was the source of data; ``the science.''
    NEPA implies that science is to be used and the regulations under 
1502.1, Purpose, and 1502.24, Methodology and Scientific Accuracy say 
it will be used, but the language leaves too much discretion.
    Some examples:
      The Mexican Wolf territorial maps. When, as Lieutenant 
Governor, I questioned the proposed release area for the animals based 
on the historical territory maps, the U.S. Fish & Wildlife Service 
simply altered the map. (Attachment B)
      The Silvery Minnow in the Rio Grande. The U.S. Federal 
District Court demanded the scientific basis for the decisions 
affecting the fish. All that was ever produced was a much dated master 
thesis by a student who never even completed his or her doctorate.
      A migration plan for wildlife proposing to require open 
gates in every fence line, which would have serious impact on livestock 
production. I learned that the basis for this requirement was a ``drive 
by'' report titled OVR (Ocular Vehicular Reconnaissance).
      The Bluntnose Shiner in the Pecos River. Random samplings 
taken by the New Mexico Department of Game & Fish were used propose to 
altering the release of water.
    When the real peer-reviewable science is applied, most of the 
arguments and court cases disappear. I respectfully recommend for your 
consideration the insertion of the specific wording ``sound peer-
reviewable science'' in the NEP Act. This language can easily be added 
in section 102 [42 USC 4332] subsections (A), (B) or (C).
    In summation, I believe when a true partnership is created between 
the states and the federal government and decisions are based on sound 
peer-reviewable science, most all arguments and thus costly litigation 
that has in reality harmed the environment becomes moot. Unfortunately, 
to date neither of these two items are the normal practice within 
federal agencies. I hope you will make these changes for the betterment 
of our environment and our country. Thank you for your time today and 
your careful consideration of these recommendations.
    Attachments:
    A.  National Conference of Lieutenant Governors in July, 2000 
Resolution
    B.  Mexican Wolf 1988 and 1995 historical range maps
    NOTE: Attachments have been retained in the Committee's official 
files.
                                 ______
                                 
    Ms. McMorris. Ms. Montoya.

  STATEMENT OF STELLA MONTOYA, NEW MEXICO FARM AND LIVESTOCK 
                  BUREAU, LA PLATA, NEW MEXICO

    Ms. Montoya. Madam Chairwoman, members of the Task Force 
Committee, and especially my Congressman Tom Udall, on behalf 
of the membership of the New Mexico Farm Bureau and everyone 
affected by the National Environmental Policy Act, thank you 
for holding a field hearing in New Mexico and in our area and 
giving us the opportunity to testify before you.
    My name is Stella Montoya. My family has ranched in the 
Northwestern New Mexico area and in Colorado and New Mexico for 
seven generations. My grandfather was a territorial senator 
before New Mexico was admitted into the Union. Today, two of my 
sons and I run a cattle ranch in northern New Mexico and 
Colorado. We have Federal, state and private lands in both 
states and I have 13 grandchildren and 5 great grandchildren 
and I hope to be able to continue to live on the land as we 
have for more than the past century.
    While the National Environmental Policy Act has not 
directly affected our operation, I know that it has had 
tremendous impact on many of the 17,000 farmers and ranchers in 
New Mexico, represented by the Farm Bureau.
    There are numerous areas of NEPA that need work, but the 
livestock producers' perspective there are three areas that we 
believe to be--that would benefit the most.
    The first is the definition of ``major Federal action.'' We 
fail to see how the renewal of a livestock grazing permit where 
grazing has taken place for literally hundreds of years, 
predating the Federal land management agencies as well as NEPA, 
is a ``major Federal action.'' We are simply doing business as 
usual out here on the ground. That we are still ranching in a 
healthy environment for hundreds of years and more wildlife 
population is a testimony to that fact. At the very least, 
grazing should fall under the categorical exclusion for NEPA 
analysis. If grazing is to be analyzed, that analysis should be 
on the over-arching use of the land and not micro managing 
items like the seasons and the use of the grazing methods and 
animal numbers.
    I can give you an example. We run cattle, like I said, in 
Colorado and New Mexico and there are years where there's too 
much snow in Colorado and it's cold up there and the grass 
doesn't come in like it normally should. And so if we have a 
certain date that we have to be in the mountains and get out of 
our land in New Mexico, it's not feasible. So if we could--and 
we have been able to work with both agencies so that if we have 
to delay getting out and getting into the mountains later, it 
works better. Or in the fall, if there's a drought in New 
Mexico, and we can stay longer in Colorado, and utilize the 
grasses up there, it makes it a lot better for us.
    The second area of concern to ranchers and Federal 
allotment owners is the misuse of NEPA process to justify 
arbitrary decisions arrived at before NEPA is ever initiated. 
One New Mexico county has lost well over 2,000 AUMs of grazing 
over the past two years. Much of that dictated during the NEPA 
on the U.S. Forest Service allotments. As I understand it, as a 
Federal law, NEPA is intended to provide a forum for public 
participation in Federal decisions affecting the natural 
environment, taking into account impacts on the human 
environment. In New Mexico, ranches and allotment owners are 
that human environment.
    It is also the understanding of NEPA that the process is to 
be used to involve the public and gather the data to reach a 
sound decision for sustainable resource management. That has 
not necessarily been our experience. Instead, we find that 
agencies are reaching a decision and using the NEPA process to 
justify it with little or no data to base these decisions on.
    Finally, ranchers and allotment owners must be involved in 
the NEPA process at the onset and throughout the process. These 
are the people that are on the ground every day and they know 
what's going on and are the most likely to have pertinent data. 
They are the ones who must live with the consequences of our 
decisions.
    We have an example in Colorado again. We live in a dry 
river----
    Ms. McMorris. I need you to just summarize.
    Ms. Montoya. The Bureau of Reclamation has planted 700 
cottonwood trees in that area to make a wetland. The ranchers 
and the allotment owners' continual involvement must carry over 
into the areas of energy of expiration and development as well. 
The ranching industry is not anti-energy. We depend on it every 
day and fully understand the need for the domestic energy 
supply. We also firmly believe in and support the multiple-use 
mission of our Federal lands. However, as energy development 
intensifies ranchers and allotment owners must be the major 
consideration. Issues on such cumulative impacts of multiple 
well locations must include the people who have been stewards 
of the land here in New Mexico for over 400 years and advise 
better places to put it.
    Thank you very much for your attention.
    [The prepared statement of Ms. Montoya follows:]

           Statement of Stella Montoya, La Plata, New Mexico

    Madam Chairwoman, members of the Task Force and Committee, and 
especially my Congressman Tom Udall, on behalf of the membership of the 
New Mexico Farm & Livestock Bureau (NMFLB) and everyone affected by the 
National Environmental Policy Act (NEPA), thank you for holding a field 
hearing in New Mexico on this issue so vital to our livelihoods and 
futures, and for the opportunity to testify before you.
    My name is Stella Montoya. My family has ranched in Northwestern 
New Mexico and Southwestern Colorado for seven (7) generations. My 
father-in-law was a territorial senator before New Mexico was admitted 
to the Union. Today, two of my sons and I run cattle on private, state 
and federal land in both states. I have 13 grandchildren and five great 
grandchildren that I hope will be able to continue to live on the land 
as we have for more than the past century.
    While the National Environmental Policy Act (NEPA) has not directly 
affected our operation, I know that it has had tremendous impact on 
many of the 17,000 farm and ranch families in New Mexico represented by 
Farm Bureau.
    There may be numerous areas of NEPA that need work, but from a 
livestock producers' perspective there are three (3) areas that we 
believe would be of most benefit.
    The first is the definition of ``major federal action.'' We fail to 
see how the renewal of a livestock grazing permit where grazing has 
taken place for literally hundreds of years, predating federal land 
management agencies as well as NEPA, is a ``major federal action.'' We 
are simply doing business as usual out here on the ground. That we are 
still ranching in a healthy environment after hundreds of years and 
having increased wildlife populations is testimony to that fact. At the 
very least, grazing should fall under a categorical exclusion for NEPA 
analysis. If uses, such as grazing, are to be analyzed that analysis 
should be on the overarching use of the land, not micro managing items 
like seasons of use, grazing methods, and animal numbers.
    The second area of concern to ranchers and federal grazing 
allotment owners is the misuse of the NEPA process to justify arbitrary 
decisions arrived at before NEPA is ever initiated. One New Mexico 
county has lost well over 200,000 Animal Unit Months (AUMs) of grazing 
over the past decade, much of that dictated during the NEPA process on 
U.S. Forest Service Allotments. As I understand it, as a federal law 
NEPA was intended to provide a forum for public participation in 
federal decisions affecting the natural environment, taking into 
account impacts on the human environment. In New Mexico, ranchers and 
allotment owners are that human environment.
    It is also my understanding of NEPA that the process is to be used 
to involve the public and gather the data to reach a sound decision for 
sustainable resource management. That has not necessarily been our 
experience. Instead, we find that agencies are reaching a decision and 
then using the NEPA process to justify it with little or no data to 
base these decisions on.
    Finally, ranchers and allotment owners must be involved in the NEPA 
process at the onset and throughout the process. These are the people 
that are on the ground every day. They know what is going on and are 
the most likely to have pertinent data. They are the ones who must live 
with the consequences of decisions.
    That rancher and allotment owners early and continual involvement 
must carry over into the area of energy exploration and development as 
well. The ranching industry is not anti-energy. We depend upon it every 
day and fully understand the need for a domestic energy supply. We also 
firmly believe in and support the multiple-use mission on our federal 
lands.
    However, as energy development intensifies, ranchers and allotment 
owners must be a major consideration. Issues such as the cumulative 
impacts of multiple well locations must include the people who have 
been stewards of the land here in New Mexico for over 400 years. 
Ranchers and landowners should not and cannot bear the total adverse 
impacts of energy production.
    Thank you once again for your time and interest. I hope that 
together we can create a law that achieves the noble goal of 
environmental sustainability without harming people like me and my 
family.
                                 ______
                                 
    Ms. McMorris. And we'll have your entire testimony in the 
record. Thanks for being here.
    Ms. Budd-Falen.

           STATEMENT OF KAREN BUDD-FALEN, ATTORNEY, 
         BUDD-FALEN LAW OFFICES, LLC, CHEYENNE, WYOMING

    Ms. Budd-Falen. Thank you. I'm honored that you have 
invited me to share my thoughts on NEPA. My name is Karen Budd-
Falen. I am a fifth generation rancher from Big Piney, Wyoming. 
As I was growing up, my father decided if he wanted to have six 
generations on the land, he needed to have daughters that were 
either a lawyer, a vet and a banker and he got all three.
    NEPA applies to all major Federal actions significantly 
affecting the environment. I believe and the congressional 
record shows that Congress chose those terms, ``major Federal 
action significantly affecting the environment'' very 
carefully. Yet, over the years the Courts and the CEQ 
regulations have greatly expanded those words so that Federal 
agencies believe that NEPA applies to all actions, not just 
major and significant actions.
    Behind me are six bankers' boxes of EAs of grazing 
allotments for simply two years in New Mexico. These documents 
control the livelihoods of ranchers grazing on Federal land. 
These are not land use planning documents where you consider 
whether grazing should occur and how multiple use should be 
determined. These are documents that look at whether you should 
put in a mile of fence somewhere, or whether someone should put 
in a livestock tank to better distribute livestock.
    That's entirely different than the suggestions and the 
examples that the Congressman talked about in their opening 
remarks where they talked about huge projects with major 
actions, significantly affecting hundreds of thousands of 
people or hundreds of thousands of acres of land. My question 
to you and my question that the NEPA Task Force should answer 
is whether the same process should apply to both, whether 
you're talking about the Tucson Power Line or oil and gas 
development on hundreds of thousands of acres versus some 
grazing allotment putting in one water tank or a mile of fence.
    The documents on the table in front of me are environmental 
assessments and environmental impact statements that need 
comments in the next two weeks. These were received by the New 
Mexico Cattle Growers and deal only with grazing issues. New 
Mexico Cattle Growers has a staff of three members. There is 
simply no way they can read and produce comments on all of 
these documents. The top two documents are documents that were 
published in the Federal Register and affect large areas of 
land, but all the documents on the bottom again are EAs for 
grazing allotments that have already been through a NEPA 
process when the Bureau of Land Management of the Forest 
Service created their land use plan.
    Again, the question is should the same process apply for 
these minor actions which the Court now require a NEPA on as 
for major Federal actions?
    Initially, if you look at the Court cases and my testimony 
goes through this in great detail, the Courts were very careful 
in saying that NEPA only applied to major Federal actions, yet 
over the years the Courts have expanded the definition of a 
Federal action to include actions by state and private parties, 
even if the Federal Government has a very minor role. They 
still have to have a NEPA compliance component.
    Additionally, the Ninth Circuit Court said that ``NEPA 
applies to actions which only may affect the environment.'' But 
if you read the initial language in NEPA, there's nothing in 
there that says ``may affect''. NEPA says ``major Federal 
actions that affect.'' Yet, the Ninth Circuit Court has 
expanded those definitions.
    And just where have these determinations led to expand the 
definition of major Federal action to include minor actions? 
Assuming that the 30 NEPA-related notices in last week's 
Federal Register are typical, the public had the opportunity in 
the last year to review 46,800 NEPA documents. And again, 
that's not all of the NEPA documents that are produced. It's 
also produced huge amounts of litigation. According to a very 
cursory web search that I did to prepare for this testimony in 
2005, looking at environmental groups' litigation in their 
websites, just in 2004 and 2005 alone, well only 100 cases were 
filed, only in the Ninth and Tenth Circuits alleging violations 
of NEPA.
    Based upon this analysis, my suggestion is that Congress 
really needs to determine what NEPA should apply to. It looks 
to me like the Courts have expanded the original congressional 
intent and if that's what Congress intends, then at least 
Congress should be clear that that's where it is going.
    I would urge Congress to revisit the original intent of 
NEPA. Thank you very much.
    [The prepared statement of Ms. Budd-Falen follows:]

         Statement of Karen Budd-Falen, Esq., Cheyenne, Wyoming

    My name is Karen Budd-Falen. I am both a rancher and an attorney 
who represents ranchers, farmers, private citizens and local 
governments who are either dependant upon the use of the federal lands 
or who are impacted by some aspect of federal agency decision-making. 
In fact, anyone who is impacted by any decision made by any federal 
agency is impacted by the National Environmental Policy Act (``NEPA''). 
In only one week, the Federal Register contained notices and requested 
comments on 30 documents analyzing or discussing actions that were 
determined to be ``major federal actions, significantly effecting the 
quality of the human environment under NEPA.'' The purpose of my 
testimony is to discuss with you the evolution of the federal courts' 
interpretation of what types of decisions constitute a ``federal'' 
action that is ``major'' and ``significant'' and to propose that the 
original intent of NEPA was not so expansive to include all types of 
decisions as are covered today.
    NEPA was adopted in 1969. Among the purposes of NEPA, 42 U.S.C. 
Sec. Sec. 4321-4370f, are to ``[t]o declare a national policy which 
will encourage productive and enjoyable harmony between man and his 
environment; to promote efforts which will prevent or eliminate damage 
to the environment and biosphere and stimulate the health and welfare 
of man.'' See 42 U.S.C. Sec. 4321. Accordingly, NEPA requires, to the 
fullest extent possible, that all agencies of the Federal Government:
    [I]nclude in every recommendation or report on proposals for 
legislation and other major Federal actions significantly affecting the 
quality of the human environment, a detailed statement by the 
responsible official on ``
      (i)  the environmental impact of the proposed action,
     (ii)  any adverse environmental effects which cannot be avoided 
should the proposal be implemented,
     (iii)  alternatives to the proposed action,
     (iv)  the relationship between local short-term uses of man's 
environment and the maintenance and enhancement of long-term 
productivity, and
      (v)  any irreversible and irretrievable commitments of resources 
which would be involved in the proposed action should it be 
implemented.
See 42 U.S.C. Sec. 4332(2)(C) (emphasis added).
    NEPA is one of our most important tools for ensuring that all 
federal agencies take a ``hard look'' at the environmental implications 
of their actions or non-actions. See Kleppe v. Sierra Club, 427 U.S. 
390, 410 n.21 (1976). However, unless a project involves a ``major 
federal action,''` NEPA does not apply. See Macht v. Skinner, 916 F.2d 
13, 16 n.4 (D.C. Cir. 1990).
    NEPA is procedural in nature and does not require ``that agencies 
achieve particular substantive environmental results,'' but it is 
``action-forcing'' in that it compels agencies to collect and 
disseminate information about the environmental consequences of 
proposed actions that fall under their respective jurisdictions. See 
Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371 (1989). 
NEPA's focus is to ensure that the agency, in reaching its decision, 
will have available and will carefully consider detailed information 
concerning significant environmental impacts. See Goos v. Interstate 
Commerce Commission, 911 F.2d 1283, 1293 (8th Cir. 1990).
    NEPA requires federal agencies--not states or private parties--to 
consider the environmental impacts of their proposed actions. See Macht 
v. Skinner, 916 F.2d at 18. ``[F]or any major Federal action funded 
under a program of grants to States,'' however, NEPA requires a state 
agency to prepare an Environmental Impact Statement for a federal 
agency if certain conditions are met. See 42 U.S.C. Sec. 4332(2)(D). 
NEPA thus focuses on activities of the federal government and does not 
require federal review of the environmental consequences of private 
decisions or actions, or those of state or local governments. See Goos 
v. Interstate Commerce Commission, 911 F.2d at 1293. Regardless of 
whether the environmental impact statement (``EIS'') is prepared by a 
federal or state agency, the twofold purpose of NEPA is ``to inject 
environmental considerations into the federal agency's decision-making 
process,'' and ``to inform the public that the [federal] agency has 
considered environmental concerns in its decision-making process.'' See 
Weinberger v. Catholic Action of Hawaii/Peace Education Project, 454 
U.S. 139, 143 (1981) (emphasis added).
    Federal agencies may also be bound by NEPA to perform additional 
environmental review of non-federal projects, notwithstanding the fact 
that the project is not federally funded. According to the regulations 
promulgated by the Council on Environmental Quality ``(``CEQ''), 
situate in the Executive Office of the President, major federal actions 
``include actions with effects that may be major and which are 
potentially subject to Federal control and responsibility.'' See 40 
C.F.R. Sec. 1508.18. These actions may be ``entirely or partly 
financed, assisted, conducted, regulated, or approved by federal 
agencies.'' See 40 C.F.R. Sec. 1508.18(a).
    The regulation, 40 C.F.R. Sec. 1508.18, further provides that 
``major federal actions'' tend to include the ``[a]pproval of specific 
projects, such as construction or management activities located in a 
defined geographic area. Projects include actions approved by permit or 
other regulatory decision as well as federal and federally assisted 
activities.'' See 40 C.F.R. Sec. 1508.18(b)(4). These regulations are 
due substantial deference from reviewing courts. See Andrus v. Sierra 
Club, 442 U.S. 347, 358 (1979).
    The regulations clearly indicate that ``major federal actions'' 
need not be federally funded to invoke NEPA requirements. See 40 C.F.R. 
Sec. 1508.18(a); see also Southwest Williamson County Community 
Association, Inc. v. Slater, 243 F.3d 270, 279 (6th Cir. 2001); Save 
Barton Creek Association v. Federal Highway Administration, 950 F.2d 
1129, 1134 (5th Cir. 1992); Macht v. Skinner, 916 F.2d at 18; Historic 
Preservation Guild of Bay View v. Burnley, 896 F.2d 985, 990 (6th Cir. 
1989); and Maryland Conservation Council, Inc. v. Gilchrist, 808 F.2d 
1039, 1042 (4th Cir. 1986). Of course, federal funding is a significant 
indication that a project constitutes a major federal action; however, 
the absence of funding is not conclusive proof of the contrary. See 
Southwest Williamson County Community Association, Inc. v. Slater, 243 
F.3d at 279; and Historic Preservation Guild of Bay View v. Burnley, 
896 F.2d at 990.
    In addition, it is apparent that a non-federally funded project may 
become a major federal action by virtue of the aggregate of federal 
involvement from numerous federal agencies, even if one agency's role 
in the project may not be sufficient to create major federal action in 
and of itself. See 40 C.F.R. Sec. Sec. 1508.25(a)(3) (noting that 
agencies ``may wish to analyze these actions in the same impact 
statement.''); and 1508.27(b) (noting that ``more than one agency may 
make decisions about partial aspects of a major [Federal] action.''); 
see also Maryland Conservation Council, Inc. v. Gilchrist, 808 F.2d at 
1042 (holding that ``[b]ecause of the inevitability of the need for at 
least one federal [agency] approval,... the construction of the [state] 
highway will constitute a major federal action.''). Thus, a federal 
agency's argument that it was only involved in one aspect of the non-
federal project's design and approval process, does not necessarily 
serve to defeat a claim that the pervasiveness of federal activity 
required to complete the project converts the project into a ``major 
federal action.'' See Southwest Williamson County Community 
Association, Inc. v. Slater, 243 F.3d at 279.
    ``[N]o litmus test exists to determine what constitutes ``major 
Federal action.'' See Save Barton Creek Association, 950 F.2d at 1134. 
Federal courts have not agreed on the amount of federal involvement 
necessary to trigger the applicability of NEPA. See Village of Los 
Ranchos de Albuquerque v. Barnhart, 906 F.2d 1477, 1480 (10th Cir. 
1990). In order to determine whether a non-federal project is or is not 
a ``major federal action'' within the meaning of 42 U.S.C. 
Sec. 4332(2)(C), courts shall consider the following factors: first, 
whether the project is federal or non-federal; second, whether the 
project receives significant federal funding; and finally, when the 
project is undertaken by a non-federal party, whether the federal 
agency must undertake ``affirmative conduct'' before the non-federal 
party may act. See Mineral Policy Center v. Norton, 292 F.Supp.2d 30, 
54-55 (D.D.C. 2003), citing Macht v. Skinner, 916 F.2d 13 (D.C. Cir. 
1990). No single factor of these three is dispositive, however, a non-
federal project is generally considered a ``major federal action'' if 
it cannot begin or continue without prior approval of a federal agency. 
See Maryland Conservation Council, Inc. v. Gilchrist, 808 F.2d at 1042, 
citing Biderman v. Morton, 497 F.2d 1141, 1147 (2nd Cir. 1974); 
Foundation on Economic Trends v. Heckler, 756 F.2d 143, 155 (D.C. Cir. 
1985).
    ``Typically, a project is considered a major federal action when it 
is funded with federal money.'' See Mineral Policy Center v. Norton, 
292 F.Supp.2d at 5 n.30, citing Southwest Williamson County Committee 
Association v. Slater, 243 F.3d at 278; see also Indian Lookout 
Alliance v. Volpe, 484 F.2d 11, 16 (8th Cir. 1973) (stating that ``any 
project for which federal funds have been approved or committed 
constitutes a major federal action bringing into play the requirements 
of NEPA.'').
    However, where the federal financial assistance to the planning 
process in no way implies a commitment by any federal agency to fund 
any project(s) or to undertake, fund or approve any action that 
directly affects the human environment, the non-federal project 
receiving the financial assistance is not a ``major federal action.'' 
See Macht v. Skinner, 916 F.2d at 16-17 (holding that the Federal 
funding of preliminary studies is not the firm commitment that could 
transform an entirely state-funded project into major federal action 
affecting the environment within the meaning of NEPA); see also Atlanta 
Coalition on the Transportation Crisis, Inc. v. Atlanta Regional 
Commission, 599 F.2d 1333, 1347 (5th Cir. 1979) (holding that 
development of regional transportation plan is not major federal 
action). An adequate Environmental Impact Statement would, of course, 
be a necessary prerequisite for the expenditure of federal funds on the 
project itself. See id. at 17.
    In most cases in which a federal agency makes a direct grant for a 
non-federal project, the use of federal funds for the project is 
sufficient to bring it under NEPA if the federal financial commitment 
is clear. See Daniel R. Mandelker, NEPA Law and Litigation Sec. 8:20 
(2nd ed. 2004). However, a court may find a project is not federalized 
if federal funding is minimal. See id., citing Ka Makani ``O Kohala 
Ohana Inc. v. Department of Water Supply, 295 F.3d 955 (9th Cir. 2002) 
(federal funding 1.3% of project); and Friends of Earth, Inc. v. 
Coleman, 518 F.2d 323 (9th Cir. 1975) (federal funding 10% of project). 
Finally, a project is not federalized if a federal funding commitment 
has not been made. See id.
    Federal participation sufficient to make a non-federal action 
``federal'' arises most clearly when a federal agency takes an action 
that authorizes a non-federal entity to undertake an activity or a 
project. In order for NEPA to apply to non-federal projects, the 
federal agency must engage in some ``affirmative conduct.'' See Mineral 
Policy Center v. Norton, 292 F.Supp.2d at 5 n.31, citing State of 
Alaska v. Andrus, 429 F.Supp. 958, 962-63 (D. Alaska 1977). Federal 
permits, leases, and other approvals in federal agency programs are the 
typical examples. ``If...the agency does not have sufficient discretion 
to affect the outcome of its actions, and its role is merely 
ministerial, the information that NEPA provides can have no effect on 
the agency's actions, and therefore, NEPA is inapplicable.'' See 
Mineral Policy Center v. Norton, 292 F.Supp.2d at 5 n.31, citing 
Citizens Against Rails-to-Trails v. Surface Transp. Bd., 267 F.3d 1144, 
1151 (D.C. Cir. 2001); see also Maryland Conservation Council, Inc. v. 
Gilchrist, 808 F.2d at 1042 (stating that a ``non-federal project is 
considered a ``federal action'' if it cannot begin or continue without 
prior approval of a federal agency.''); South Dakota v. Andrus, 614 
F.2d 1190, 1193 (8th Cir. 1980) (holding that ``ministerial acts...have 
generally been held outside the ambit of NEPA's EIS requirement.''); 
Minnesota v. Block, 660 F.2d 1240, 1259 (8th Cir. 1981) (stating that 
because ``the Secretary has no discretion to act, no purpose can be 
served by requiring him to prepare an EIS, which is designed to insure 
that decision-makers fully consider the environmental impact of a 
contemplated action.''); and Sierra Club v. Hodel, 848 F.2d 1068, 1089 
(10th Cir. 1988) (stating that the ``EIS process is supposed to inform 
the decision-maker. This presupposes he has judgment to exercise. Cases 
finding ``federal'' action emphasize authority to exercise discretion 
over the outcome.'').
    Additionally, when the non-federal project restricts or limits the 
statutorily prescribed federal decision-makers' choice of reasonable 
alternatives, the non-federal project must be considered a ``major 
federal action.'' See Southwest Williamson County Community 
Association, Inc. v. Slater, 243 F.3d at 281.
    If the federal participation in the project is substantial, then 
the state should not be allowed to move forward until all of the 
federal approvals have been granted in accordance with NEPA. See Macht 
v. Skinner, 916 F.2d at 18-19. For example, Maryland Conservation 
Council, Inc. v. Gilchrist, 808 F.2d 1039 (4th Cir. 1986) involved an 
attempt to enjoin construction of a county highway designed to pass 
through a state park. The court found that the county highway project 
involved ``major federal action,'' because (1) the highway crossed a 
state park that had been purchased with a substantial federal grant; 
therefore, the county needed the approval of the Secretary of the 
Interior to convert the park land to other than recreational use; (2) 
the county needed a Sec. 404 permit from the Army Corps to dredge 
wetlands; and (3) the county might need the approval of the Secretary 
of Transportation to use park land for a transportation project. See 
Maryland Conservation Council, Inc. v. Gilchrist, 808 F.2d at 1042. On 
these facts, the Fourth Circuit Court of Appeals held that the district 
court should have considered the motion to enjoin the county's 
construction until the federal officials complied with NEPA. See id. at 
1043.
    Importantly, the court in Gilchrist did not hold that the state had 
to comply with NEPA because the approval of several federal agencies 
was a necessary precondition to the state project. Instead, Gilchrist 
held that because the state needs permits and discretionary approval 
from several federal agencies in order to build a substantial part of 
the highway, the state could not construct any portion of the highway 
until the federal agencies had approved the project in compliance with 
NEPA.
    Furthermore, in general, ``a non-federal project is considered a 
``federal action'' if it cannot begin or continue without prior 
approval by a federal agency and the agency possesses authority to 
exercise discretion over the outcome.'' See Sugarloaf Citizens 
Association v. Federal Energy Regulatory Commission, 959 F.2d 508, 513-
14 (4th Cir. 1992). The mere approval by the Federal Government of an 
action by a state/private party, where that approval is not required 
for the non-federal project to move forward, will not constitute a 
``major federal action'' under NEPA. See Mayaguezanos Por La Salud Y El 
Ambiente v. United States, 198 F.3d 297, 301-02 (1st Cir. 1999) (held 
that voluntary notification of the Coast Guard by shippers of nuclear 
waste pertaining to transit through territorial waters did not 
constitute major federal action; the United States has chosen not to 
regulate shipments of nuclear waste through its territorial waters--
there are no requirements that it do so, nor is it immediately evident 
that it would have that authority if it so chose); see also Citizens 
Awareness Network, Inc. v. United States Nuclear Regulatory Commission, 
59 F.3d 284, 292-93 (1st Cir. 1995) (found major federal action where a 
federal agency approved the release of funds from a trust held by the 
agency that were necessary for a project to go forward; the effect of 
this action was explicitly to permit the private actor to decommission 
a nuclear facility).
    When the federal government has actual power to control a non-
federal project (i.e., the federal agency's action must be a legal 
condition precedent that authorizes the other party to proceed with the 
action), the project constitutes a ``major federal action.'' See Ross 
v. Federal Highway Admin., 162 F.3d 1046, 1051 (10th Cir. 1998); 
Ringsred v. City of Duluth, 828 F.2d 1305, 1308 (8th Cir. 1987); and 
NAACP v. Medical Center, Inc., 584 F.2d 619, 628 n.15 (3rd Cir. 1978). 
If federal approval is the prerequisite to the action taken by the 
state/private parties, or if the federal agency possesses some form of 
authority over the outcome, then the non-federal project constitutes 
``major federal action.'' See Mayaguezanos Por La Salud Y El Ambiente 
v. United States, 198 F.3d at 301-02 (held no major federal action 
under NEPA, because United States was not assigned a role, nor had any 
control, over the shipment of nuclear waste through its territorial 
waters); see also United States v. South Florida Water Mgmt. Dist., 28 
F.3d 1563, 1572 (11th Cir. 1994) (holding that the touchstone of a 
major federal activity constitutes a federal agency's authority to 
influence non-federal activity); and Save Barton Creek Association v. 
Federal Highway Administration, 950 F.2d at 1134 (stating that the 
``distinguishing feature of ``federal'' involvement is the ability to 
influence or control the outcome in material respects.'').
    Moreover, the need for a federal license or approval could 
sometimes trigger NEPA, but not where the approval did not involve 
close scrutiny of the action or anything more than notice for safety 
purposes. See Citizens for Responsible Area Growth v. Adams, 680 F.2d 
835, 839-40 (1st Cir. 1982) (held that construction of an airport 
hangar by private parties with private monies was not federal action 
for NEPA purposes, and that the mere appearance of the proposed 
construction on a federally approved Airport Layout Plan did not create 
sufficient federal involvement to require an Environmental Impact 
Statement).
    Finally, if no federal agency has jurisdiction over the non-federal 
project, the federal agency lacks sufficient control or responsibility 
over the non-federal project to influence the project's outcome. See 
Southwest Williamson County Community Association, Inc. v. Slater, 243 
F.3d at 284. Stated another way, whether an agency action or project is 
part of some other concededly ``major federal action'' depends largely 
on whether the agency exercises legal control over the allegedly non-
federal action or project. See Goos v. Interstate Commerce Commission, 
911 F.2d at 1294. In determining whether a federal agency exercises 
legal control, a court must consider whether some federal action ``is a 
legal condition precedent to accomplishment of an entire non-federal 
project.'' See id., citing Winnebago Tribe v. Ray, 621 F.2d 269, 272 
(8th Cir. 1980). A ``major federal action'' occurs when a federal 
agency has discretion in its enabling decision to consider 
environmental consequences and that decision forms the legal predicate 
for another party's impact on the environment. See id. at 1295, citing 
NAACP v. Medical Center, Inc., 584 F.2d at 633. In such a situation, it 
is fair to say that the agency has significantly contributed to the 
environmental impact. See id.
    It is well settled that non-federal parties may be enjoined, 
pending completion of an Environmental Impact Statement, where those 
non-federal entities have entered into a partnership or joint venture 
with the Federal Government to obtain goods, services, or financing. 
See Biderman v. Morton, 497 F.2d 1141, 1147 (2nd Cir. 1974). A joint 
venture between a state/private party and the Federal Government to 
obtain goods or services from a Federal agency clearly constitutes a 
major federal action subject to NEPA. See Sierra Club v. Hodel, 544 
F.2d 1036, 1044 (9th Cir. 1976) (holding that construction of 
hydroelectric power plant may be enjoined until federal agency prepared 
Environmental Impact Statement, because the Bonneville Power 
Administration federalized the project by contracting to construct a 
transmission line and supply power to the plant).
    Once it has been determined that the action is federal, the next 
question is whether the action is ``major.'' There are two views on 
what is a ``major'' action. The minority view holds that a ``major 
federal action'' is one that requires substantial planning, time, 
resources, or expenditure. National Resources Defense Council v. Grant, 
341 F. Supp. 356 (E.D.N.C. 1972). Another court held that ``major 
actions'' were ones projects with federal funding usually over 
$1,000,000, large increments of time for planning or construction, the 
displacement of many people or animals, or the reshaping of large areas 
of topography.'' Township of Ridley v. Blanchette, 421 F. Supp. 435 
(E.D.Pa. 1976). That court went on to state:
        In sum, ``major'' is a term of reasonable connotation, and 
        serves to differentiate between projects which to not involve 
        sufficiently serious effects to justify the costs of completing 
        an impact statement and those projects with potential effects 
        which appear to offset the costs in time and resources of 
        preparing a statement.
Id. at 446.
    In more prominent view, however, the term ``major'' has received 
less attention and in some cases, has been simply collapsed with the 
term ``significant.'' The leading case in adopting this collapsed 
definition is Minnesota Public Interest Research Group v. Butz (I), 498 
F.2d 1314 (8th Cir. 1974). In that case, the court held that NEPA's 
policies would be better served with a collapsed view of ``major'' and 
``significant'' so that a ``minor'' federal action significantly 
effecting the environment would still be subject to NEPA. Based upon 
that court case, the CEQ revised its regulations defining ``major'' to 
state that ``major reinforces but does not have a meaning independent 
of ``significantly.'' 40 C.F.R. Sec. 1508.18.
    Given that the term ``major'' has been essentially eliminated from 
the consideration in whether to prepare a NEPA document, the CEQ 
regulations and court cases focuses on the term ``significant.'' 
According to the CEQ regulations, the term ``significant'' is to be 
measured in terms of both context and intensity. Context has been very 
broadly defined to include short-term and long-term effects to the 
society as a whole, the affected region, the affected interests or the 
locality. See Simmons v. Grant, 370 F. Supp. 5 (S.D.Tex 1974). 
Intensity relates to the severity of the impact, both beneficial and 
negative. Such intensity is usually determined by comparing the 
potential project to the baseline. In an example often used by the 
courts, one more polluting factory in an industrial area ``may 
represent the straw that breaks the back of the environmental camel.'' 
Hanly v. Kleindienst (II), 471 F.2d 823, 830-31 (2nd Cir. 1972). Other 
circuit courts have held that an action can be significant even though 
the environmental impact is limited. National Resources Defense Council 
v. Grant, 341 F. Supp. 356 (E.D.N.C. 1972). The 9th Circuit Court has 
an even more expansive view holding that an impact statement must be 
prepared if an agency's action ``may'' have a significant impact on the 
environment. See e.g. National Parks and Conservation Association v. 
Babbitt, 241 F.3d 722 (9th Cir. 2001) and the other 85 cases with the 
same holding.
    And just where have these determinations lead? Assuming that the 30 
NEPA related notices in last week's Federal Register is typical, in the 
last year, the public was given the opportunity to review 46,800 NEPA 
notices. With regard to individual environmental impact statements 
(``EIS'') and environmental assessments (``EA''), according to the 
Federal Register website, 50 EISs and 50 EAs have been published since 
January, 1, 2005. Importantly, not all EAs or EISs are published in the 
Federal Register. Thus, there is really no way to ascertain the number 
of NEPA documents published each year. According to the CEQ, in 1997, 
498 EISs alone were completed by the federal agencies. Litigation 
against 102 of those NEPA documents were filed. Over one-half of those 
suits were filed by ``public interest organizations.'' A very cursory 
review of the 2005 websites for the Forest Guardians, Southwest Center 
for Biological Diversity, National Wildlife Federation and Earthjustice 
shows that this litigation alleging violation of NEPA have increased 
exponentially. According to this web search, in 2004 and 2005 alone, at 
least 65 cases were filed which included at least some cause of action 
involving the National Environmental Policy Act.
    Based upon this analysis, my suggestion is to revisit the reason 
that NEPA was adopted--to force consideration of ``major'' actions 
``significantly'' impacting the environment. I strongly agree with 
those who advocate for public involvement in agency decision making 
processes. However, in today's rampant environmental litigation 
environment, it is extremely difficult to imagine that ANY federal 
decision or action can escape NEPA review. This includes actions that 
simply have no impact, such as putting in a water trough, or building a 
temporary fence. Although the CEQ has changed the regulations to 
subsume ``major'' into ``substantially,'' Congress used both modifiers 
to inform the federal agencies when NEPA compliance is necessary. I 
would argue that Congress should again revisit the original intent of 
the NEPA litigation.
                                 ______
                                 
    Ms. McMorris. Thank you.
    Mr. Fraley.

STATEMENT OF RICHARD FRALEY, VICE PRESIDENT, SAN JUAN DIVISION, 
          BURLINGTON RESOURCES, FARMINGTON, NEW MEXICO

    Mr. Fraley. I'd like to thank you for allowing me to 
provide testimony today and I especially thank Representative 
Udall for arranging to have this Task Force here in New Mexico. 
I'm Richard Fraley with Burlington Resources. Burlington is the 
largest producer of natural gas in New Mexico. In addition, we 
have lands throughout the Rockies, so obviously NEPA is 
something of interest to us.
    My starting point is that we also agree that is very good 
policy in what we think should happen as we look for ways to 
improve and administer the policy and implementation to policy. 
I'd like to address three points today.
    First is the NEPA impact of obtaining a new application 
permit to drill a well. Second, how the NEPA process has 
expanded in the last 20 years and third, offer a few 
recommendations.
    Burlington Resources obtained EAs on about 200 projects 
annually in the San Juan Basin and I'll reference four wells 
that are representative of the projects we currently permit. 
Each well will temporarily disturb three to four acres of land 
including the well pad access road and pipeline tie. Post-
drilling, the unreclaimed disturbed surface will be about one 
to one and a half acres for the producing life of the well. 
These four wells took nearly two years to permit and receive 
the final NEPA analysis. For details you can see my written 
testimony.
    While some EA projects are more intensive than others 
because they're located in areas of critical concern or special 
management areas as defined by the Department of the Interior, 
these four wells are located in the Carson National Forest 
outside of an ACEC. The EAs ultimately all concluded a 
recommended action of no significant impact.
    As I mentioned, all the lands will be fully reclaimed, once 
depletion of a well and all but one to one and a half acres 
will be reclaimed once the well is ready to produce. During 
reclamation of the land, our standard practice includes 
recontouring and revegegation of disturbed lands so that about 
only an acre of land remains disturbed for the producing life 
of the well. The process involves draining and backfilling the 
drilling reserve fill, tilling and seeding the drill site and 
placing straw mulch over the reseeded areas. Photos are 
included in my written testimony.
    This process has been identified as the best management 
practice by the BLM and is cited in a New Mexico State 
University Study done by Professor Richard N. Arnold.
    Let's talk about the EA process that we are involved in 
with wells. This process commences after we've conducted an 
onsite inspection of the surface with the Federal land 
managers. It's critical in our plans that we account for 
seasonal closings of Federal lands. Much of the Federal lands 
in the West are subject to said seasoning closures including 
about 30 percent of the land administered by the Farmington 
Field Office of the BLM. As for our operations, about 65 
percent of our operations are subject to seasonal closures.
    The time it took for preparation of the EAs for these four 
wells was 261 days on average. In most cases, a third party 
environmental firm paid for by the operator, gathered data and 
drafted the EA. Once the EA was submitted, the Federal agencies 
took nearly 200 days to review the EA and approve the APD.
    The NEPA impact has dramatically increased APD process time 
since the late 1980s. In the 1980s, the Federal land managers 
were able to comply with the well site NEPA documentation and 
analysis in a routine and succinct manner. The EA was actually 
part of the permit to drill and was about a half a page in 
length. Today, the time it takes to obtain an APD is doubled 
and the environmental assessment has grown 11,500 percent, to 
approximately 60 pages of research and review. During this 
time, the NEPA statute and Federal regulation have not changed.
    Ironically, this has occurred at a time when industry has 
been making great improvement in reducing the surface 
disturbance of our operations. During the 1980s, surface 
disturbance for a well site was about 6.3 acres, reclaimed to 
about 4.5 acres, compared to today's impact of 3.5 acres 
reclaimed to an acre and a half or so. Despite dramatically 
less disturbance, the time to complete an APD has doubled with 
the industry funding the expense of the EA.
    During my brief oral testimony, it doesn't include the 
impact to consumers, but we do conclude that NEPA constraints 
inhibit the production of natural gas, thereby limiting the 
supply and impacting the cost of living for all Americans, 
especially those on the lower economic earning level.
    In conclusion, just a few changes to the way NEPA is 
managed, could have a positive impact on gas supplied to the 
American consumer. Some of these changes are addressed in part 
by provisions of the recently passed Energy Policy Act of 2005 
and we're evaluating the potential positive effects. But it's 
essential that eventually we have clear authority and direction 
in several areas.
    We recommend, one, allowing Federal land managers the 
ability to rely on their source management plans, forest plans 
and the associated environmental impact statements to assess 
cumulative impact.
    Two, utilization of categorical exclusions for well sites 
that require less than five acres of new temporary disturbance.
    And three, additional funding to BLM Field Offices with 
high oil and gas activity to provide a sufficient number and 
quality of staff, including field inspectors to handle NEPA-
related tasks. Our recommendation changes, along with changes 
that have been suggested by others will assist in removing the 
backlog of pending APDs and will help move gas more quickly to 
the American public.
    Thank you for your time and consideration of these points.
    [The prepared statement of Mr. Fraley follows:]

            Statement of Richard E. Fraley, Vice President, 
                San Juan Division, Burlington Resources

    Honorable Members of Congress and staff working on the House 
Resource Committee Task Force on Improving the National Environmental 
Policy Act, I thank you for allowing me to provide written and oral 
testimony and especially thank Representative Udall for arranging to 
have the Task Force Hearing in New Mexico.
    I am Richard Fraley, Vice President of Burlington Resources' San 
Juan Division, located in Farmington, New Mexico.
    Burlington is the largest producer of natural gas in New Mexico, 
operating nearly 6,500 wells in the State and producing between 700-730 
million cubic feet per day (mmcf/d). We drill about 200 new wells 
annually. In addition, Burlington operates and explores for oil and gas 
in numerous basins in the Rocky Mountain West. Obviously, NEPA and NEPA 
reform is important to our company and other producers on federal 
lands.
    I would like to address the following points regarding NEPA:
    1)  The timing for permitting wells and the NEPA impact on 
obtaining a new Application For Permit To Drill (APD).
    2)  How the NEPA process has expanded in the last 20 years.
    3)  What NEPA means to the American family.
    4)  To offer a few recommendations for streamlining NEPA's impact 
on oil and gas.
    To give you an understanding of how the NEPA process is currently 
impacting oil and gas development, I will review a snapshot of four 
wells Burlington has permitted in 2005, and the process of 
Environmental Assessment (EA) which directly impacts the procurement of 
new drilling permits.
    Exhibit 1 details four wells on which Burlington received APDs in 
2005. Each well will disturb less than 4 acres of land, including the 
well pad, access road and pipeline tie. Post drilling, our production 
operations utilize about 1.5 acres for the producing life of the well. 
Yet, these four wells, like many we drill, took nearly two years to 
permit and receive the final NEPA analysis.
    The EA cost of $2,500 to $2,700 represents only the portion of the 
bill paid to the third party consultant and does not account for the 
countless hours of time for our employees and Federal land management 
staff.
    Exhibit 2 reflects the actual dates of the four wells cited and are 
representative of the NEPA process Burlington conducts on over 200 
projects annually in the San Juan Basin. While some EA projects are 
more intensive than others because they are located in Areas of 
Critical Concern (ACEC) or Special Management Areas (SMA), as defined 
by the Department of Interior, these four wells are located in the 
Carson National Forest outside of an ACEC.
    The EA's all conclude a recommended action of ``no significant 
impact''.
    Exhibit 3 lists the actual disturbance on a well-by-well basis. 
Keep in mind, all the land will be fully reclaimed upon depletion of 
the well (40-50 years), and all but about 1.0 to 1.5 acres per well 
will be reclaimed once the well is ready to produce.
    Exhibit 4 photographs represent Burlington's standard post drilling 
or interim reclamation program. As can be identified in the 
photographs, the typical three acre drilling pad is recontoured and 
revegetated to a site of about an acre in size. The process involves 
draining and back filling the drilling reserve pit, tilling and seeding 
the drill site and placing straw mulch over the reseeded areas. The 
photos herein show the current process of reseeding the entire drilling 
site except for the access keyhole road and the actual production 
facilities. The Bureau of Land Management (BLM) identifies this 
reclamation process as a ``Best Management Practice''.
    Exhibit 5 is a portion of a study conducted in 2004 by Associate 
Professor Richard N. Arnold of New Mexico State University which 
states, ``...dry weight yields were approximately two to six times 
higher on the seeded well sites as compared to the undisturbed off well 
sites.'' This is an independent verification of our reclamation 
process.
    Exhibit 6 is an analysis of the time it takes to actually prepare 
an EA for each of the four wells, being 261 days on average. This 
includes the time for the Federal land managers, or in most cases, a 
third party environmental firm paid for by the Operator, to gather data 
and draft the EA. Once the EA is completed and submitted, the Federal 
agencies (BLM, USFS) take nearly 200 days to review the EA and finalize 
the APD approval. The EA process commences after we have conducted an 
actual on-site inspection of the surface with Federal land managers. As 
shown in the ``green'' portion of these bar charts, it is critical to 
plan our work accounting for seasonal closings of federal lands. The 
Peggy Cole #1 and Mike McKinney #1 wells were staked in the Fall, but 
before the on-site could be conducted, the locations fell into winter 
closure and we could not commence permitting until Spring of the 
following year, which added 200 days to the process. Much of Federal 
lands in the west are subject to seasonal closures, including large 
portions of the San Juan Basin.
    Exhibit 7 shows the areas of seasonal closure in the San Juan Basin 
which are reflected in the ``colored'' or ``hatched'' areas on the map. 
This represents the 800,000 acres, or 30%, of the 2.6 million acres, 
under the jurisdiction of the BLM Farmington Field Office, that are 
subject to timing limitations. For Burlington, 65% of our operations 
are subject to seasonal closures.
    Exhibit 8 details the changes in the NEPA process since the 1980s. 
In the 80s the Federal land managers were able to comply with well site 
NEPA documentation and analysis in a routine and succinct manner. The 
EA was actually about a half page in length and part of the APD and 
currently APDs run to 60 pages, or more, in length.
    Ironically, the expansion of the NEPA documentation to obtain an 
approved APD comes at a time when industry has been making great 
improvement in reducing the temporary disturbance of our operations on 
the surface.
    The three 1980s vintage APDs reviewed in this Exhibit had an 
original field impact of 6.3 acres reclaimed to 4.5 acres, compared to 
today's impact of 3.5 acres reclaimed to 1.5 acres. This reduced 
surface disturbance is evident in the photographs in Exhibit 4.
    Exhibit 9 provides a graphical representation of how modern 
oilfield practices have reduced the temporary disturbance of our 
operations.
    Exhibit 10 outlines NEPA's impact on the American consumer. 
Department of Energy data indicates the average American household uses 
about 70 thousand cubic feet (mcf) of natural gas per year. A typical 
well in the San Juan Basin, like the ones we are attempting to permit, 
may average about 500 mcf/d, or enough gas to supply fuel for heating 
and cooking for about 2,600 American families.
    In June 2005, the BLM Farmington Field Office disclosed they had in 
excess of 500 pending APDs. Much of the backlog is likely due to the EA 
process and NEPA requirements. This pent up gas supply amounts to the 
annual natural gas fuel use for over 1.3 million American homes.
    Exhibit 11 details the financial impact to families based on 
income. Lower income households pay a substantially higher portion of 
their income for energy, than higher income households. A household 
with an income of less than $20K annually, pays 2.1% of their gross 
income for natural gas as opposed to a household earning over $75K 
annually, which pays about 0.8% of their gross income for natural gas.
    We conclude that NEPA constraints inhibit the production of natural 
gas thereby limiting the supply and impacting the cost of living for 
all Americans, especially those on the lower economic earning level.
    In conclusion, just a few changes to the way NEPA is managed could 
have a positive impact on gas supply to the American consumer. Some of 
these changes are addressed in part by provisions of the recently 
passed Energy Policy Act of 2005, and we are evaluating their potential 
positive effects, but it is essential that eventually we have clear 
authority and direction in several areas. We recommend,
      i) Allowing Federal land managers the ability to rely on their 
Resource Management Plans, Forest Plans and associated Environmental 
Impact Statements to assess cumulative impact.
     ii) Utilization of Categorical Exclusions for well sites that 
require less than five (5) acres of new temporary disturbance.
     iii) Provide additional funding to BLM Field Offices with high oil 
and gas activity to provide a sufficient number and quality of staff 
including, field inspectors to handle NEPA related tasks.
    Our recommended changes along with those which have been made by 
others, will assist in removing the backlog of pending APDs from the 
desks of the Federal land managers and will help move gas more quickly 
to the American Public.
    Thank you for your time and consideration of these points.
    NOTE: Attached exhibits have been retained in the Committee's 
official files.
                                 ______
                                 
    Mr. Cannon. [Presiding.] Thank you, Mr. Fraley.
    Could I just briefly, on the sites that you recommended, do 
you have multiple wells or are they single well sites?
    Mr. Fraley. We use multiple well sites when we can and 
existing disturbance where we can. But some of these include 
new disturbances as well.
    Mr. Cannon. Thank you. And when you have multiple wells on 
a site, you're reclamation is down to about an acre and a half, 
right?
    Mr. Fraley. Yes.
    Mr. Cannon. Thank you. I apologize. I won't ask many 
questions, but I just wanted to follow up on that one thing.
    Mr. Frost, you're recognized for five minutes.

 STATEMENT OF CLEMENT J. FROST, CHAIRMAN, SOUTHERN UTE INDIAN 
               TRIBAL COUNCIL, IGNACIO, COLORADO

    Mr. Frost. Good morning, Madam Chair and members of the 
Task Force. I am Clement Frost, Chairman of the Southern Ute 
Indian Tribal Council. I'm honored today to appear before you. 
My written testimony has already been submitted to you and I 
hope you will consider it. The written testimony outlines in 
some detail the difficulties that we have with NEPA.
    Today, I would like to emphasize several of those points in 
that testimony. First, our tribal lands are not public lands. 
Although the United States may hold legal title to trust lands, 
it does not do so in behalf of the public. As trustees, the 
United States holds title to the trust lands for the benefit of 
tribes.
    Decisions regarding our land generally involve two parties. 
First, the Tribal Council, the tribe's governing body evaluates 
options, considers the needs of membership of the tribe, and 
then makes a decision. Second, when Federal law requires the 
Secretary of the Interior or her delegate must review and 
approve the action in deciding whether to take an action, the 
Tribal Council is concerned about the needs of the tribe as we 
should be. In acting as a trustee in deciding whether to 
approve a Tribal Council decision the Secretary also should be 
considering the needs of the tribe and the tribe's best 
interest, even if those interests appear to conflict with the 
wishes or best interests of some members of the public.
    To the extent that NEPA required the Secretary to delay 
approval of tribal actions or imposes a structure that second 
guesses our decision, NEPA compromises our sovereignty.
    Second, the Federal approval process, the NEPA review can 
result in real unfairness to tribes. Our reservation is a 
checkerboard of ownerships, the tribe, individual, allottees 
and non-Indians all have land within the boundaries of the 
Southern Ute Indian Reservation. If one of our non-Indian 
neighbors wants to enter into an oil and gas lease, all he has 
to do is sign the oil and gas lease. No Federal approval is 
required. No NEPA analysis is imposed. No notice is required or 
given to the tribe.
    Suppose the company on our neighbor's land wants to drill a 
well? The company must obtain a well permit through the State 
Commission or tribe. We'd probably receive notice of that 
application, but we'd also probably not have any reason to 
object and the permit would be granted. Once the well was 
drilled and produced, it is very possible that that well could 
be draining oil and gas for more lands. If our Tribal Council 
again wanted to protect the tribe and enter into a mineral 
lease, we could use either the 1938 Indian Mineral Lease Act or 
the 1982 Indian Mineral Development Act. Under the 1938 Act, 
there would be legal publication and bidding. Under the 1982 
Act, we would negotiate directly with the company. Under both 
Acts before the signed leases could be approved by the 
Secretary, a NEPA analysis of some kind would be required.
    There is no statutory timeframe for completing NEPA reviews 
and the Department of the Interior is backlogged. How long do 
we have to wait to protect our interest? Let's suppose a local 
citizen group doesn't like oil and gas drilling. Their 
opportunities to challenge that activity on our neighbor's land 
are pretty small, but as to our land, NEPA allows them to sue 
the Secretary and challenge the sufficiency of the NEPA 
analysis. And in light of our Tribal Council's deliberations 
and decisions, why should the Secretary be required to consider 
the no action alternative or any alternatives? Shouldn't the 
Secretary's review and approval be limited to whether our 
decision is reasonable and a prudent decision?
    Madam Chair, these are some of the questions that we have 
had for several years working with the House Committee on 
Resources and the Senate Indian Affairs Committee to address 
these questions. We are pleased that the Committee on Resources 
supported the Indian Title in an Energy bill. The Indian Title 
has a new optional program that may allow some tribes the 
chance to replace the Secretary's approval NEPA process with a 
tribal process. The tribal process envisioned in the Energy 
bill will provide for public notice and comment, but will leave 
the decisionmaking about tribal land, where it belongs, with 
the tribe.
    In conclusion, Madam Chair, we appreciate being asked to 
participate in this process. We thank you for this opportunity 
and any time that you would like to come visit our reservation, 
you are welcome to join us. We will be very proud to show what 
our tribe has accomplished. Thank you very much.
    [The prepared statement of Mr. Frost follows:]

    Statement of Clement J. Frost, Chairman of the Tribal Council, 
                       Southern Ute Indian Tribe

    I am Clement J. Frost, Chairman of the Southern Ute Indian Tribal 
Council. On behalf of the Southern Ute Indian Tribe (``Tribe''), I am 
honored that the Task Force has invited our Tribe to present testimony 
on ways in which the National Environmental Policy Act (``NEPA'') 
affects the Tribe and its members.
    The main purpose of NEPA when it was passed in 1970 was to help 
preserve public lands from unnecessary environmental damage. NEPA 
requires federal agencies to evaluate the impacts of their proposed 
actions. Whenever a federal agency determines that its actions might 
have a significant impact on the environment, NEPA directs that the 
public be notified, that alternatives to the proposed action be 
identified, and that the impacts of such alternatives be weighed in an 
environmental impact statement (``EIS''). NEPA encourages members of 
the public, local governments and sister agencies to comment upon those 
reports, but leaves final decision-making up to the lead federal 
agency. A complex web of regulations and court decisions govern the 
content of an EIS and the scope of alternatives to be considered by the 
federal agency.
    Separate and apart from NEPA, Congress has statutorily delegated to 
the Secretary of the Interior the responsibility and power to supervise 
a multitude of activities that occur on Indian trust lands. This 
federal delegation of approval authority is part of the historic 
federal trust responsibility between the United States and Indian 
tribes. Many of the federal-approval statutes have been on the books 
for more than one hundred years. For example, federal approval is 
required before a mineral lease between a Tribe and an oil and gas 
company can become lawfully effective. But such federal approval is not 
limited to mineral leasing, rather it affects many tribal decisions. 
Even changes to tribal constitutions may require federal approval. 
Because federal approval is a federal action, any such request for 
approval theoretically triggers some level of NEPA analysis.
    The history of the trust relationship between the United States and 
tribes is important in understanding the unique difficulties that NEPA 
raises in Indian Country. Congress and the federal courts have long 
recognized the sovereignty of Indian tribes and the power of tribes to 
make decisions affecting their internal affairs. Unless limited by 
Congress, tribes have the inherent authority to regulate their lands. 
Importantly, Indian lands are not public lands; generally they are 
lands promised to tribes in treaties, executive orders or legislation. 
While the United States may hold legal title to such lands, Indian 
lands are intended for the exclusive use and benefit of tribes and 
their members.
    Since 1934, when Congress passed the Indian Reorganization Act 
(``IRA''), Indian tribes have been encouraged to pursue a path of self-
determination. The IRA promised to participating tribes, including our 
Tribe, that no use, taking, lease or encumbrance to tribal lands would 
be permitted in the future without the consent of the tribal council or 
governing body of the tribe. In 1938, Congress passed the Indian 
Mineral Leasing Act, which outlined the process for securing the 
consent of tribes and the approval of the Secretary for the leasing of 
tribal lands for mineral development. In 1948, Congress enacted similar 
legislation regarding rights-of-way across Indian lands. In 1982, 
Congress passed the Indian Mineral Development Act, which authorized 
tribes to enter into direct negotiations with companies and encouraged 
tribes and industry to customize their business dealings based upon the 
specific circumstances of the tribe. Simultaneously, Congress empowered 
tribes to establish their own environmental regulatory programs 
consistent with standards established in the Clean Water Act and the 
Clean Air Act. Congress also appropriated funds to strengthen tribal 
court systems, law enforcement programs, and governmental institutions. 
In 2000, Congress removed some of the extremely restrictive approval 
requirements related to entering into contracts with tribes. With those 
changes, we could hire legal counsel without Secretarial approval, and 
could enter into service contracts involving our lands without 
Secretarial approval, so long as the duration of the contract was less 
than seven years. All of these programs evidenced an underlying premise 
that tribes should be the decision-makers on their own lands, subject 
only to the oversight that Congress chose to retain in maintaining its 
trust obligations.
    Significantly, Congress has recognized that the decisions reached 
by tribes in developing their lands and resources are not public 
decisions. For example, the Indian Mineral Development Act (``IMDA'') 
expressly directs the Secretary to maintain as privileged and 
proprietary information ``all projections, studies, data or other 
information possessed by the Department of the Interior regarding the 
terms and conditions of [a] Minerals Agreement, the financial return to 
the Indian parties thereto, or the extent, nature, value or disposition 
of the Indian mineral resources, or the production, products or 
proceeds thereof...'' 25 U.S. C. Sec. 2103 (c). While such information 
may be reviewed by the Secretary in deciding whether to approve such an 
agreement, any such information submitted for Secretarial consideration 
is statutorily non-public and proprietary to the tribe. In the same 
Act, however, Congress also directs the Secretary to employ the NEPA 
impact and alternatives analyses in considering whether or not to 
approve an IMDA Minerals Agreement. While, we believe that it may be 
beneficial for the Secretary to analyze the potential environmental 
impacts of an IMDA Minerals Agreement, we do not believe that Congress 
intended NEPA to be applied in way that would permit public citizen 
groups to second-guess our objectives, the substance of our 
negotiations, or the balancing of development and environmental 
interests implicit in the tribe's legislative decisions about its own 
non-public lands.
    Our Reservation consists of approximately 750,000 acres in 
southwestern Colorado. Our Reservation, which is a checkerboard of 
tribal, allotted, and fee lands, is located in the northern San Juan 
Basin, one of the most prolific natural gas basins in the lower forty-
eight. Oil and gas leasing on our Reservation began in the late 1940's, 
and modest royalty income from tribal leases was almost our sole source 
of revenue throughout the 1970's. For several decades our tribal 
leaders have actively pursued the promise of tribal self-determination. 
In 1974, we placed a moratorium on all future mineral leasing of our 
lands so that we could evaluate the best ways to proceed with 
subsequent development. In 1980, we formed our own Energy Department so 
that we could monitor lease compliance and develop information and 
strategies about future prudent development.
    We also developed systems for monitoring environmental impacts from 
such development. For example, we were the first entity in our region 
to set up air quality monitoring stations. We led the fight to ensure 
that water produced during natural gas exploration be disposed of 
safely and at sufficient depths to avoid domestic water tables. Our 
non-Indian neighbors appreciated our vigilance in these areas.
    Following passage of IMDA, and after compiling decades worth of 
data, we resumed energy development through negotiated agreements. 
Instead of just collecting royalties, we also formed our own oil and 
gas operating company. Together with industry, we have continued to 
produce conventional gas resources, and our operating company, Red 
Willow Production Company is a leading producer of coalbed methane. Red 
Willow is now the fourth largest natural gas producer in Colorado. We 
are also majority owners of a major intrastate gathering and treating 
company that operates on our Reservation. Volumes equal to 
approximately 1% of the Nation's daily natural gas supply go through 
our gathering and treating system. Success in this area has led to 
success in diversified investments. We now have approximately 60 
different companies with active operations or investments in 
approximately 8 States, the Gulf of Mexico and Canada. We are the 
largest employer in the Four Corners Region, and our staff includes 
skilled geologists, petroleum engineers, computer programmers, title 
specialists, financial analysts, and environmental compliance 
specialists.
    Our progress has contributed significantly to the well-being of our 
members. Our revenues from these and other investment activities fund a 
variety of programs and services. In addition to direct distributions 
to tribal members, we provide an elder retirement pension program, 
extensive scholarships, operate our own school and Head Start Program, 
operate a regional recreation center, provide utility services to 
tribal members and non-Indian communities in our region, participate, 
maintain our own law enforcement department and judicial system, and 
participate in wellness and health service programs. Through our 
contributions to local governments and organizations, including 
sizeable financial contributions, we have also improved the lives of 
our neighbors.
    Our accomplishments have often involved administrative assistance 
from the Department of the Interior, but on many occasions, we have 
succeeded despite administrative delays imposed by bureaucratic laws 
and regulations related to Indian tribes. Both in expertise and 
numbers, our staff far exceeds that available within the Bureau of 
Indian (``BIA''). The delays associated with obtaining BIA approval of 
contracts or activities is stifling, even when dealing with officials 
who want to cooperate. Concern on the part of the BIA and the 
Department of the Interior about potential liability in administering 
the federal trust responsibility has made decisive action even more 
difficult to obtain in the Cobell era.
    NEPA review adds delay to the federal approval of tribal leases, 
rights-of-way, and land-related transactions. Additionally, NEPA and 
the National Historic Preservation Act have become the tools of choice 
of public citizens groups to block the decisions of federal agencies, 
not just as to public lands, but also as to tribal lands. We know this 
from personal experience, both with respect to settlement of our water 
claims and with respect to energy development.
    Congress approved settlement of our water rights claims with the 
State of Colorado in 1988. That settlement involved construction of the 
Animas-La Plata Project. Following congressional approval, the Fish and 
Wildlife Service altered its non-jeopardy opinion under the Endangered 
Species Act and concluded that construction of the project would alter 
the critical habitat of endangered fish. For more than a decade, 
settlement proponents and project sponsored worked to modify the 
project and complete supplemental environmental impact statements. In 
2000, Congress approved amendments to the settlement act that have 
allowed the Animas-La Plata Project to go forward. We are grateful that 
Congress approved the amended settlement, but the costs of delay 
amounted to millions of dollars.
    In the mid 1990s, after several years of coalbed methane 
development on our Reservation, our staff recognized that increased 
well density would be needed to increase ultimate recovery of gas 
reserves from our mineral lands. We discussed this matter with the BIA, 
the Bureau of Land Management (``BLM'') and representatives of the 
Colorado Oil and Gas Conservation Commission, with whom we had 
cooperative jurisdictional agreements. Oil and gas development on our 
reservation had already been evaluated under a comprehensive NEPA 
Environmental Assessment. Infill oil and gas development on any Indian 
Reservation, however, had never previously been the subject of a 
programmatic EIS. We felt that infill development on the Reservation 
might be attacked if a programmatic EIS was not prepared. Accordingly, 
we entered into an agreement with the federal agencies so that such an 
EIS could be performed. The EIS cost our Tribe more than $1 million and 
took more than five years to complete. In the meantime, we worked with 
industry, the BLM, the BIA, and the Colorado Oil and Gas Conservation 
Commission to obtain a spacing order designating increased well 
density, subject to individual agency approval of any specific drilling 
permit, which itself also triggers NEPA analysis.
    Before the EIS was completed, in February, 2000, two citizen groups 
filed a lawsuit in the United States District Court in Colorado against 
the Secretary challenging NEPA compliance. Among other relief, the 
Plaintiffs requested that no more coalbed methane wells be drilled on 
our Reservation lands until completion of a comprehensive EIS 
addressing coalbed methane development on all lands within the entire 
San Juan Basin. We intervened in the case to protect the Tribe's 
interests. No preliminary or injunctive relief was obtained. After our 
programmatic EIS was completed and the administrative record of 
decision entered, the plaintiffs amended the complaint in federal court 
to challenge the adequacy of the EIS. The case is still pending.
    Several years ago, the New Mexico BLM completed a similar 
programmatic EIS for public lands in New Mexico within the San Juan 
Basin. One of the same citizen groups and the Natural Resource Defense 
Council filed a lawsuit in U.S. District Court in the District of 
Columbia challenging the adequacy of that EIS. Among other relief, the 
Plaintiffs again requested to no additional wells in the San Juan Basin 
be drilled, including lands on our Reservation, until a Basin-wide EIS 
was completed. We intervened in that case, as well, which has since 
been transferred to the federal court in New Mexico. That case also 
remains pending.
    In our view, we went the extra mile in attempting to comply with 
NEPA with respect to our oil and gas development decisions on our 
lands. The cost of that compliance was not cheap. Because public 
citizens groups want to treat Indian lands like public lands, we have 
had to participate in two protracted federal lawsuits. Fundamentally, 
we believe that our Tribal Council, not the Natural Resources Defense 
Council, and, frankly, not the Secretary of the Interior, should have 
decision-making authority on our lands.
    For the reasons set forth above, we have been strong advocates of 
the Indian Title contained in the Energy Bill recently passed by the 
House and the Senate. That legislation contains provisions that will 
permit tribes who so desire to remove themselves from the Secretarial 
approval process for mineral leases, business contracts and rights-of-
way affecting their lands. As a condition to such removal, a tribe will 
be required to first enter into a comprehensive procedural agreement, a 
Tribal Energy Resource Agreement (``TERA''), with the Secretary. Only 
tribes with proven track records of successful decision-making and 
effective tribal environmental programs will be permitted to enter into 
a TERA. Further, a TERA will require that the process of tribal 
decision-making on subsequent development contracts include an 
opportunity for notice and comment by local governments and the public. 
Once a TERA is approved, and so long as the tribe complies with the 
TERA, no Secretarial approval will be required. Also following entry 
into a TERA, no federal action will be involved in the tribe's decision 
to approve a lease, right-of-way or contract. Thus, as to contract 
approval, NEPA will not be triggered. We believe the Indian Title 
provides an important opportunity to evaluate alternatives to NEPA on 
tribal lands, that allow for some public involvement, but preserve the 
primacy of tribal decision-making.
    In conclusion, the Tribe appreciates this opportunity to testify. I 
am accompanied today by Thomas Shipps, who has served as one of our 
attorneys since 1979. He has been directly involved in the matters I 
have discussed, including participation in the discussions and drafting 
that led to proposals in the Indian Title of the Energy Bill. We are 
willing to assist the Task Force and the Committee as it reviews these 
matters in the future. Finally, we invite members of the Task Force and 
the Committee to visit our Reservation, and, witness first hand, our 
accomplishments in improving the lives of our members and of our 
neighbors on our Reservation.
                                 ______
                                 
    Ms. McMorris. [Presiding.] Thank you very much.
    Mr. Shipps.

                STATEMENT OF THOMAS H. SHIPPS, 
                LEGAL COUNSEL TO CHAIRMAN FROST

    Mr. Shipps. Madam Chairwoman, I'm here as legal counsel for 
Chairman Frost. If there are questions later and I can assist 
Chairman Frost to answer any, I'd be glad to.
    Ms. McMorris. Thank you.
    Mr. Grogan.

STATEMENT OF STERLING GROGAN, BIOLOGIST AND PLANNER, MIDDLE RIO 
      GRANDE CONSERVANCY DISTRICT, ALBUQUERQUE, NEW MEXICO

    Mr. Grogan. Madam Chairwoman, Ranking Member Udall, other 
members of the Committee, thank you for this opportunity to 
speak with you. I did submit written comments.
    I would like to just briefly mention one problem that we 
have with NEPA. I am the biologist and planner of the Middle 
Rio Grande Conservancy District which is a political 
subdivision of the State of New Mexico. NEPA is an important 
fact of life for any non-Federal agency such as ours that deals 
with Federal agencies, Federal laws and Federal money. The 
Conservancy District, as a founding member of the Middle Rio 
Grande Endangered Species Collaborative Program has been 
involved in what has become a multi-year process of developing 
an environmental impact statement for this program. The program 
will likely be authorized the Congress in 2006 and the Federal 
agencies in good faith initiated the NEPA process in 2003, in 
part, to make sure that all important Federal funding would 
continue to be available for habitat rehabilitation and 
research to protect and recover the endangered Rio Grande 
silvery minnow and Southwestern willow flycatcher in central 
New Mexico where our irrigation district serves about 11,000 
people.
    Although Federal agencies have evolved rules to make NEPA's 
as productive as possible, the Conservancy District views much 
of what NEPA itself now requires as largely irrelevant to 
effective environmental decisionmaking. Specifically, with 
respect to the Endangered Species Collaborative Program in the 
Middle Rio Grande, the NEPA process has been for them in some 
part unproductive and has consumed resources in an 
administrative procedure, thus preventing those same resources 
from being used to protect and recover endangered species.
    I'd like to make three recommendations for revising NEPA. 
First, we believe that NEPA should be revised so that Federal 
agencies are not only allowed, but encouraged to conduct the 
important environmental analyses required by NEPA in the same 
incremental manner that projects are designed and that 
decisions are made.
    As it now stands, NEPA analyses are artificially restricted 
to a certain time limit. By the time the analysis is complete, 
it's out of date in many cases. We support in this context the 
comments of Mr. Lance earlier which we believe would facilitate 
this change.
    Second, we think NEPA should be revised to provide a 
screening method to allow exclusion from the NEPA process for 
Federal decisions that support mandatory environmental programs 
such as those--such as the recovery of endangered species, 
along the Middle Rio Grande, and we think that instead, those 
programs ought to have established for them a more flexible and 
expeditious analytical framework that is predicated upon the 
use of the best science currently available, but does not 
involve the long, drawn out analysis that is currently the way 
that NEPA is managed.
    Third, we suggest that policy acts from other countries 
should be examined to see if some of their procedures could be 
incorporated into NEPA to make it more reasonable and flexible. 
For example, Canada requires environmental analyses in an 
incremental fashion, during the development of a project or 
during the genesis of a decision. There are other environmental 
policy acts in Germany, The Netherlands and Great Britain that 
also might offer some useful changes for NEPA.
    Thank you very much.
    [The prepared statement of Mr. Grogan follows:]

           Statement of Sterling Grogan, Biologist/Planner, 
                 Middle Rio Grande Conservancy District

    Good morning Madam Chairman and Task Force members. Thank you for 
this opportunity to share with you some thoughts about how the National 
Environmental Policy Act (NEPA) might be strengthened and improved.
    First, I would like to give you a brief history of the Middle Rio 
Grande Conservancy District, where I have served as biologist/planner 
since 1997. The Conservancy District is a political subdivision of the 
State of New Mexico, formed in 1925 as a direct result of the earlier 
efforts of Aldo Leopold and many others to cope with the flooding and 
waterlogged soils that damaged tens of thousands of acres of previously 
productive farmland along the Rio Grande. The Conservancy District now 
supplies irrigation water, flood control, and drainage services to some 
277,000 acres of land, of which about 60,000 is irrigated. We serve 
about 11,000 farmers, including members of six Indian Pueblos. The 
oldest canal in our system has been in continuous use since about 1700, 
and archeologists tell us that irrigated agriculture has been practiced 
in the middle Rio Grande valley for at least 800 years.
    NEPA is an important fact of life for any non-Federal agency, such 
as ours, that deals with Federal agencies, Federal laws, and Federal 
money. The Conservancy District, as a founding member of the Middle Rio 
Grande Endangered Species Collaborative Program, has been involved in 
what has become a multi-year process of developing an Environmental 
Impact Statement for this Program. The Program will likely be 
authorized by Congress in 2006, and the Federal agencies in good faith 
initiated the NEPA process in 2003, in part to make sure that all-
important Federal funds would continue to be available for habitat 
rehabilitation and research to protect and recover the endangered Rio 
Grande silvery minnow and southwestern willow flycatcher in central New 
Mexico.
    Although Federal agencies have evolved sophisticated rules to make 
NEPA as productive as possible, the Conservancy District views much of 
what NEPA itself now requires as largely irrelevant to effective 
environmental decision-making. Specifically with respect to the 
Endangered Species Collaborative Program, the NEPA process has been for 
the most part unproductive, and has consumed resources in an 
administrative procedure, thus preventing those resources from being 
used to protect and recover endangered species.
    There are three reasons for this unfortunate situation.
    1.  NEPA dictates that environmental analysis be artificially 
restricted to a limited time period, so that developments after some 
arbitrary cutoff date cannot be considered. This is unrealistic because 
it ignores the fact that human thinking and planning proceeds 
incrementally. No Federal project is constructed precisely as it is 
initially envisioned; changes in design and specifications are 
continuous, right up until construction begins. Likewise, no Federal 
decision is made without taking into consideration developments that 
occur right up until the moment the decision is final. But NEPA cannot 
cope with incremental change, or new information, or with changes in 
scope or facts or partners that come after the arbitrary cutoff date.
    Recommendation: Revise NEPA so that Federal agencies are not only 
allowed, but encouraged, to conduct the important environmental 
analyses required by NEPA in the same incremental manner that projects 
are designed and that decisions are made.
    2.  The way NEPA is structured, and the way it is currently 
applied, seems to assume that all Federal decisions are bad for the 
environment, and that the only way to offset the bad is to spend money 
to describe the resources that those bad decisions will damage. While 
this reasoning may be appropriate for an armored vehicle proving 
ground, or a decision to dispose of radioactive waste, it is 
fundamentally flawed when applied to a Federal decision to protect and 
recover endangered species. While it is reasonable to expect that 
Federal agencies would professionally evaluate the consequences of such 
a decision, it is not reasonable to force such an analysis into the 
straight jacket that is the current NEPA process.
    Recommendation: Revise NEPA to provide a screening method to allow 
exclusion from the NEPA process for Federal decisions that support 
mandatory environmental programs (such as the recovery of endangered 
specie), and establish for those decisions a more flexible and 
expeditious analytical framework that is predicated upon use of the 
best science currently available.
    3.  NEPA originally needed to be comprehensive, because there were 
few precedents. Now, some thirty years later, there are many 
alternative strategies for achieving the same environmental objectives, 
and NEPA should be adaptively revised (e.g., using principles of 
adaptive management) to incorporate what society has learned in the 
interim and to eliminate those among the original requirements that are 
no longer necessary or appropriate. For example, Canada developed an 
approach to NEPA-like analyses that has some worthwhile features, such 
as the way they deal with incremental project planning and development. 
Other examples from Germany, The Netherlands, and Great Britain may 
also provide appropriate alternatives.
    Recommendation: Review environmental policy acts from other 
countries to see if some of their elements could be adopted in a 
revised NEPA to meet current U.S. environmental policy objectives.
                                 ______
                                 

  Response to questions submitted for the record by Sterling Grogan, 
       Biologist/Planner, Middle Rio Grande Conservancy District

    1.  Question: I think you are right that the current state of NEPA 
is that it suggests that the federal decision will have a negative 
impact and that the agency starts by defending that false premise. How 
can NEPA be changed to at least get the agency started from a neutral 
position.
    Answer: Clarify, and possibly expand through rulemaking, the use of 
the ``Categorical Exclusion'' provisions of NEPA, so that Federal 
decisions that create or support important environmental improvement 
efforts (e.g., creating habitat for endangered species, or doing 
research to support the protection and recovery of endangered species) 
can be excluded from the requirements of NEPA.
    2.  What are some of the factors that have made NEPA irrelevant and 
unproductive, as you suggest?
    Answer: Many Federal agencies are unwilling to risk using the 
Categorical Exclusion provisions of NEPA because they fear they will 
loose if the issue is litigated. This could be remedied by rulemaking 
(especially CEQ rules changes) that clarify and strengthen the 
authority of Federal agencies to exclude from NEPA requirements those 
actions that are clearly intended to have only positive environmental 
outcomes, such as many actions related to the protection and recovery 
of endangered species.
    3.  Do you think the 35 years of precedent have made Federal 
agencies ``smarter'' or at least better at decision making?
    Answer: In general, yes. But some Court decisions in some NEPA 
cases (as was made clear in other testimony at the August 1 hearing) 
have made NEPA less flexible and more burdensome. One result is that 
Federal agencies, being appropriately conservative and risk-averse by 
nature, tend more often than not to err on the side of extreme caution. 
One result of that is their reluctance, often without substantial 
justification, to use the Categorical Exclusion provisions of NEPA.
                                 ______
                                 
    Ms. McMorris. Thank you.
    Mr. Zavadil.

 STATEMENT OF DUANE ZAVADIL, VICE PRESIDENT FOR GOVERNMENT AND 
 REGULATORY AFFAIRS, BILL BARRETT CORPORATION, DENVER, COLORADO

    Mr. Zavadil. Madam Chairman and members of the Commission, 
thank you for the opportunity to testify about NEPA today. My 
name is Duane Zavadil. I work with the Bill Barrett 
Corporation, an independent natural gas exploration and 
production company headquartered in Denver, Colorado. Our 
business is to explore and develop clean natural gas resources 
on Federal lands in the Rocky Mountain region. I'm the Vice 
President of Government and Regulatory Affairs for Bill Barrett 
Corporation and NEPA compliance is my responsibility. We have 
operations in eight western states under the jurisdiction of 
five United States Forest Service offices and 10 Bureau of Land 
Management field offices.
    The National Environmental Policy Act is a vitally 
important statute with the noblest of goals. Bill Barrett 
Corporation is a company which embraces those goals as part of 
its corporate ethic to protect the environment, and we welcome 
the ``guidepost'' that NEPA was intended to provide. But I 
believe NEPA is a statute that can miss the mark in terms of 
fulfilling its promise. The sad fact of the 30-plus years of 
history of NEPA implementation has shown that the permitting 
process associated with NEPA compliance has become vastly 
longer and more cumbersome than it needs to be to accomplish 
the environmental protections that are sought. Further, given 
its complex and overly prescriptive nature, it is a process 
that also invites costly litigation. The end result if often 
unnecessary degradation to the environment itself, but also the 
delayed production of the important and clean natural gas 
resources that our country so desperately needs.
    Let me cite a particular example of the unnecessary burden 
that NEPA has been to the Bill Barrett Corporation. These days, 
the first step in any exploration project is to conduct a #D 
geophysical survey over the prospect, commonly known as a 
seismic shoot. These surveys are used to determine the areas 
that are most likely to contain natural gas. They have also 
been proven to have absolutely no environmental impact. 
Nonetheless, extensive NEPA analyses are being prepared prior 
to conducting these surveys. Prior to the enactment of NEPA 
requirements and for that matter, until a few years ago, 
permits could be obtained in a matter of days. But for our 
project in the Utah Basin, the process took over two years and 
a NEPA lawsuit caused further delay. Finally, after much wasted 
time and money, the permits were issued, the surveys were done, 
and as expected natural gas resources were discovered and are 
being developed. But precious time was lost and money was 
unnecessarily wasted.
    Now I say that time and money was wasted because the NEPA 
process for this simple project could have been conducted in a 
matter of months, not years. The delays added no value in terms 
of environmental protection to the project, the delays, I'm 
emphasize that. We're a believer in NEPA. My written testimony 
will provide more examples of the unnecessary cost and delay 
for the record.
    To summarize, for all of its value, NEPA has become in some 
cases cumbersome and fraught with delays. These delays are 
costing consumers and the economy.
    Thank you, Madam Chairwoman for the opportunity to be here 
today and we welcome the Task Force to the West and look 
forward to being part of the dialog for ways to improve NEPA.
    [The prepared statement of Mr. Zavadil follows:]

 Statement of Duane Zavadil, Vice President--Government and Regulatory 
                   Affairs, Bill Barrett Corporation

    Madame Chairman and members of the Committee, thank you for the 
opportunity to testify about NEPA today. My name is Duane Zavadil. I 
work with Bill Barrett Corporation, an independent natural gas 
exploration and production Company headquartered in Denver, Colorado. 
Our business is to explore and develop clean natural gas resources on 
federal lands in the Rocky Mountains. I am Vice President of Government 
and Regulatory Affairs for Bill Barrett Corporation and NEPA compliance 
is my responsibility. We have operations in eight western states under 
the jurisdiction of five United States Forest Service offices and ten 
Bureau of Land Management Field Offices.
    The National Environmental Policy Act (NEPA) is a vitally important 
statute with the noblest of goals. Bill Barrett Corporation is a 
company which embraces NEPA's goals as part of its corporate ethic to 
protect the environment, and we welcome the ``guidepost'' of federal 
guidance that NEPA was intended to provide. But I believe NEPA is a 
statute that has missed the mark it terms of fulfilling its promise. 
The sad fact of the 30-plus years' history of NEPA implementation has 
shown that the permitting process associated with NEPA compliance is 
vastly longer and more cumbersome than it needs to be. Further, given 
its complex and overly prescriptive nature, it is a process that also 
invites costly litigation. The end result is often unnecessary 
degradation to the environment itself, but also the delayed production 
of the important and clean natural gas resources that our country so 
desperately needs.
    Let me cite a particular example of the unnecessary burden that 
NEPA has been to the Bill Barrett Corporation. These days, the first 
step in any exploration project is to conduct a 3D geophysical survey 
over the prospect, commonly known as a seismic shoot. These surveys are 
used to determine areas that are most likely to contain natural gas; 
they have also been proven to have absolutely no environmental impact, 
nonetheless, extensive NEPA analysis are being prepared prior to 
conducting these surveys. Prior to the enactment of NEPA requirements, 
permits could be obtained in a matter of days. But for our project in 
the Uintah Basis, the process took over two-and-a-half years. And a 
lawsuit caused further delay. Finally, after much wasted time and money 
the permits were issued, the surveys were done and, as expected, 
natural gas resources were discovered and are being developed. But 
precious time was lost and money was unnecessarily wasted. I will be 
providing more examples of unnecessary cost and delay for the record.
    Thank you Madame Chairwoman for the opportunity to be here today. 
We welcome the Task Force to the West and look forward to being part of 
the dialogue to explore ways to improve NEPA.
    I'll be pleased to answer any questions.
                                 ______
                                 
    Ms. McMorris. Thank you.
    Ms. Kupillas.

        STATEMENT OF SUE KUPILLAS, EXECUTIVE DIRECTOR, 
        COMMUNITIES OF HEALTHY FORESTS, MEDFORD, OREGON

    Ms. Kupillas. Good morning Task Force Chairwoman McMorris, 
Ranking Member Udall and members of the Task Force. My name is 
Sue Kupillas and I am Executive Director for Communities for 
Healthy Forests, a nonprofit based in Roseburg, Oregon.
    Communities for Healthy Forests mission is ``to realize the 
prompt restoration and recovery of the conifer forest in the 
aftermath of fire and other catastrophic events ensuring the 
presence and vitality of forest lands for future generations.''
    We have two goals. The first is to educate communities and 
grass roots organizations across the United States about 
current conditions of forests that have experienced 
catastrophic events. The second is to work for changes in 
regulation so restoration can begin soon after the catastrophic 
event.
    Two years ago, community leaders in Roseburg, Oregon, 
looked at a burn that occurred in 1996. Because of that tour, 
community leaders decided that they would do something about 
the intolerable situation that the forest had been totally 
walked away from. They formed Communities for Healthy Forests. 
It's an organization of liberal and conservative, large and 
small businesses including a former school board member; Chair 
Bruce Klein eight Papa Murphy's Pizzas; Lee Patterson, the 
superintendent of schools; a local Judge; the Cow Creek Tribes, 
unions and many other organizations who come together around 
the common interest of the need to restore forests. Communities 
for Healthy Forests is funded by local business, unions, the 
Cow Creek Tribes, and county funds.
    We believe that the largest impediment to restoration of 
forests in a timely manner is the NEPA regulation. Healthy 
Forest Restoration Act has helped with improving forest 
conditions in a green forest before a fire, but does not 
address blackened forest restoration.
    At issue is the time it takes to complete an environmental 
impact statement which could be up to three years with 
consultations and analysis and comments. Then the EIS can be 
appealed. Time becomes the weapon. As standing dead trees 
deteriorate and become bug-infested while the Courts and 
lawyers debate each issue. Appeals that stretch this cumbersome 
process out another year guarantee so much loss of value that 
the sales are not bid because there is no incentive to recover 
the dead material.
    The NEPA problem is the same whether it occurs in Arizona, 
New Mexico, Oregon or Pennsylvania. In the year 2002, the 
largest fire in the nation, the Biscuit Fire in Oregon burned 
500,000 acres in the Rogue Siskiyou National Forest in my 
backyard. On the Biscuit Fire, there are estimates that 7 to 10 
billion board feet of timber was lost.
    Today, three years later, one percent of the Biscuit is 
being salvaged, with new protesters coming in almost every 
week. It took over one and a half years to complete the EIS and 
get a Record of Decision. The Biscuit had 23,000 comments which 
had to be analyzed, many of which were boilerplate e-mails. 
Specialists in soils, fisheries, water quality, wildlife and 
silviculture had to comment on the effects of the proposed 
actions. There's lots of duplication in the analyses of 
specialists. Standardizing the analysis could simplify and 
eliminate some of the duplication.
    On the Biscuit Fire site as 67 million board feet of the 
proposed 350 million board feet is hauled out this summer, the 
value is questionable. No old growth trees have been harvested 
and no roads built in roadless areas yet these are still the 
claims of the radical groups which continue to protest. The 
rest of the volume is tied up in lawsuits and red tape.
    If modifications of NEPA were made today, they would not 
help recover losses from the Biscuit or any of the 2002 fires, 
but if we do something now, future burned areas can be treated.
    Here's what The Oregonian said. It's the largest newspaper 
in Oregon. ``It's not just all the charred trees chewed up by 
insects, it's all rotten: The millions of dollars and hundreds 
of hours spent writing plans for salvage and restoration 
projects, many of which will never happen; the endless 
lawsuits; the dueling scientists; the cynical politics; the 
breathless protests. Nearly all of it looks like a big waste.''
    While the primary focus of Communities for Healthy Forests 
is education about post catastrophic event treatment in 
forests, CHF also supports administrative rule changes that 
will serve to expedite restoration. The do nothing alternative 
should be examined in the process without action in most cases. 
Habitat streams and soils deteriorate. Fuels are still there to 
burn and the result moves forests away from stated goals. Do 
nothing has consequences and in many cases undesirable 
consequences. That should be done in the planning process up 
front.
    To conclude, the effects of a broken NEPA process on our 
rural communities and our schools is catastrophic. Here in the 
U.S. we are wasting resources, throwing away family wage jobs, 
not adequately funding schools and allowing remaining mill 
infrastructure to be dismantled. In a time of Federal deficit 
spending, Federal agency fund shortages, and state funding 
crisis, we are literally throwing away dollars that could fuel 
our economy and fund our schools. Worse than that, the effect 
of delay is causing serious damage to our environment and 
deterioration of our national forests.
    Those of us who live in communities with burned forests, 
drive through or fly over miles and miles of burned areas too 
lat to restore. This is our legacy to our children.
    Thank you for having these hearings and thank you for the 
opportunity to testify.
    [The prepared statement of Ms. Kupillas follows:]

            Statement of Sue Kupillas, Executive Director, 
                    Communities for Healthy Forests

    Good morning Task Force Chairwoman McMorris, Congressman Udall and 
members of the Task Force. My name is Sue Kupillas and I am Executive 
Director for Communities For Healthy Forests, a non-profit based in 
Roseburg, Oregon.
    Communities for Healthy Forests mission is: ``To realize the prompt 
restoration and recovery of the conifer forest in the aftermath of fire 
and other catastrophic events ensuring the presence and vitality of 
forest lands for future generations.''
    We have two goals. The first is to educate communities and grass 
roots organizations across the United States about current conditions 
of forests that have experienced catastrophic events, talk about why 
they aren't being restored and what changes need to be made for timely 
restoration.
    The second is to work for changes in regulation so restoration can 
begin soon after the catastrophic event, if managers think restoration 
will achieve forest's goals.
    With me today is the Chairman of the Board, Bruce Klein, a 
community leader who owns 8 Papa Murphy's Pizza stores, and Lee 
Paterson, Superintendent of Roseburg public school district. Schools 
are affected by decreased forest revenues and when we can't even cut 
dead burned trees in our forests, the system is broken. Bruce and Lee 
were present on a tour of the fire site, two years ago where community 
leaders looked at a burn that occurred in 1996. The burn had not been 
salvaged and now is off limits to workers by OSHA, as it is deemed 
unsafe. The area has converted to brush fields. Because of that tour, 
community leaders decided that they would do something about this 
intolerable situation, and they formed Communities for Healthy Forests.
    CHF is an organization of community members, liberal and 
conservative, large and small business, including a farmer and school 
board member, a local judge, the Cow Creek Tribes, Unions and many 
organizations, who have come together around the common interest of a 
need to restore forests that have been through catastrophic events. CHF 
is funded by local business, Unions, the Cow Creek Tribes, and county 
funds.
    CHF believes that the largest impediment to restoration of forests 
in a timely manner is the NEPA regulation. HFRA has helped with 
improving forest conditions in a green forest before a fire but does 
not address blackened forest restoration Two weeks ago we were meeting 
with Counsel of Environmental policy office in Washington D.C. They 
told us that they thought the problem had been fixed. We discussed 
modifying Healthy Forest Restoration Act to include restoration of 
forests after catastrophic events which would help focus attention on 
cleanup of burned areas. However, it would not expedite the NEPA 
process.
    The issue is the time it takes to complete an Environmental Impact 
Statement which could be up to three years with consultations and 
analysis of comments. Then the EIS can be appealed. Time becomes the 
weapon, as standing dead trees deteriorate and become bug infested 
while the courts and lawyers debate each issue. Appeals that stretch 
this cumbersome process out another year guarantee so much loss of 
value that the sales are not bid because there is no incentive to 
recover the dead material. Also, many companies don't want the hassle 
of entering protest areas, with the possibility of damaged equipment, 
spiked trees and tree sitters. Thousands of boilerplate comments on 
each EIS come in the form of e-mails. Each has to be analyzed to 
determine if issues are significant.
    The NEPA problem is the same whether it occurs in Arizona, New 
Mexico, Oregon or Pennsylvania. June 2005 was the third anniversary of 
Arizona's devastating Rodeo-Chediski fire, that charred 460,000 acres 
finally contained July 7, 2002. (Nationwide, almost seven million acres 
burned that summer costing more than $1.6 billion in fire fighting 
costs and untold dollars in loss of valuable timber and jobs, all 
affected by the NEPA problem.)
    In the year, 2002, the largest fire in the nation, the Biscuit Fire 
burned 500,000 acres in the Rogue Siskiyou National Forest. (Over 
650,000 acres were burned in Southwestern Oregon in 2002.) On the 
Biscuit Fire, there are estimates that 7-10 billion board feet of 
timber was lost.
    Today three years later,1% of the Biscuit is being salvaged, with 
new protesters coming in almost every week. (The protesters blockaded 
roads, at one point preventing the contractor from transporting an 
injured worker.) It took over 1 1/2 years to complete the EIS and get a 
ROD. The Biscuit had 23,000 comments which had to be analyzed, many of 
which were boilerplate e-mails. Specialists in soils, fisheries, water 
quality, wildlife and silviculture had to comment on effects of each of 
the proposed actions. There is lots of duplication in the analysis of 
specialists. Standardizing the analysis could simplify and eliminate 
some of the duplication.
    NEPA provides an alternatives Methods EIS, but the Counsel of 
Environmental Quality has been unwilling to invoke that authority which 
could grant agencies to act expeditiously as in emergency to expedite 
the EIS process and promptly act to recover and restore the affected 
forests. If we relied on this authority every time, we would always 
need CEQ intervention before agencies could act.
    On the Biscuit fire site, as the 67 mmbf (of the proposed 350 mmbf) 
is hauled out this summer, the value is questionable. No old growth 
trees have been harvested and no roads built in roadless areas yet 
these are still the claims of the radical groups which continue to 
protest. The rest of the volume is tied up in law suits and red tape.
    If modifications of NEPA were made today, they would not help 
recover losses from the Biscuit or any of the 2002 fires but if we do 
something now, future burned acres can be treated. On the Biscuit Fire, 
there are estimates that 7-10 billion board feet of timber was lost. 
You can fly over it, as Bruce Klein did a couple of weeks ago, and see 
mile after blackened mile of dead trees as far as you can see. What a 
waste.
    Here is what The Oregonian, (largest newspaper in Oregon), said: 
``It's not just all the charred trees chewed up by insects, It's all 
rotten: The millions of dollars and hundreds of hours spent writing 
plans for salvage and restoration projects, many of which will never 
happen; the endless lawsuits; the dueling scientists; the cynical 
politics; the breathless protests. Nearly all of it looks like a big 
waste.'' This indicates there is strong sentiment in favor of timely 
removal of dead material and restoration.
    While the primary focus of Communities for Healthy Forests is 
education about post catastrophic event treatment in forests, CHF also 
supports administrative rule changes that will serve to expedite 
restoration. We have been looking at how NEPA could be modernized or 
modified to address the time issue. While our organization believes 
changes can take place administratively, legislation will be necessary 
at some point in the process to secure permanent modifications. We are 
looking for results, so how NEPA changes happen is not as important as 
making sure the correct modifications are in place. NEPA processes 
should not take more than six months to a year. Federal agencies should 
be required to meet the deadlines. That means simpler assessment on the 
front end, which would include (among other things) standardized 
requirements for specialists analyzing effects of each alternative
    The ``do nothing'' alternative should be examined in the process. 
Without action, in most cases habitats, streams and soils deteriorate, 
fuels are still there to burn and the result moves forests away from 
stated goals. Do nothing has consequences and in many cases undesirable 
consequences. That should be done in the planning process up front.
    The National Fire Plan process, the Western Governor's Association 
10 year comprehensive Strategy Implementation Plan, and the Healthy 
Forest Restoration Act all outline strategy for prevention and fire 
planning, but again, do not specifically address salvage and 
restoration of burned areas. The burned areas present a fuel loading 
issue, as severe, or maybe more severe (after brush has grown up), as 
do the overstocked forests. This has to be addressed quickly to reduce 
fire danger and safety concern. In the glossary of the WGA Plan, Burned 
Area Rehabilitation is described as ``the treatment of an ecosystem 
following disturbance to minimize subsequent effects. (1995 Federal 
Wildland Fire Policy), however there is no framework for the treatment. 
Clearly every plan and planning process is omitting effective plans for 
salvage and restoration.
    The effects of a broken NEPA process on our rural communities and 
our schools is catastrophic. Here in the U.S. we are wasting resources, 
throwing away family wage jobs, not adequately funding schools and 
allowing remaining mill infrastructure to be dismantled. In a time of 
federal deficit spending, federal agency fund shortages, and state 
funding crisis we are literally throwing away dollars that could fuel 
our economy and fund our schools. Worse than that, the effect of delay, 
is causing serious damage to our environment and deterioration of our 
National Forests. Those of us who live in communities with burned 
forests, drive through or fly over miles, and miles of burned areas, 
too late to restore. That is our legacy to our children. In America, 
this should not happen. We urge this Task Force, to bring leadership to 
the legislative process, inform The Administration of the problems with 
NEPA then get the changes made.
    Thank you for having these hearings and thank you for the 
opportunity to testify. I would be happy to answer questions.
                                 ______
                                 
    Ms. McMorris. Mr. Seciwa.

                 STATEMENT OF CALBERT SECIWA, 
                   ZUNI TRIBE, TEMPE, ARIZONA

    Mr. Seciwa. Madam Chair, distinguished members of the Task 
Force, thank you for inviting me to testify at this field 
hearing on the National Environmental Policy Act.
    My name is Calbert A. Seciwa, an enrolled member of the 
Pueblo of Zuni Tribe, and one of the founding members of the 
Zuni Salt Lake Coalition. From the onset I state for the record 
that I declare my opposition to any amendments of the National 
Environmental Policy Act. I give this testimony as an 
individual and do not intend to represent the Pueblo of Zuni 
Tribal Government.
    My testimony today will address the efforts of the Zuni 
Salt Lake Coalition, Coalition hereafter, in regards to our 
successful plan of action that we employed to protect a sacred 
site, Zuni Salt Lake and the Sanctuary Zone. Zuni Salt Lake is 
the home of Ma'lokyattsk'I, our revered Salt Mother. And the 
associated Sanctuary Zone is a place where in ancient times, 
even to this day, warring tribes from throughout the Southwest 
put down their weapons and shared in the sanctity of Salt 
Mother. The development of the Fence Lake Coal Mine, that was 
proposed by the Salt River Project, SRP, an Arizona-based 
utility company, would have had irrevocable negative 
consequences to this significant and sensitive environmental, 
culturally and sacred national resource. Without NEPA, the Zuni 
Salt Lake and the Sanctuary Zone revered by countless of 
A:ho'e, People and sovereign nations would not have been heard 
and their voices would not have been considered in the public 
decisionmaking process of this country afforded by legislative 
authority of NEPA.
    The struggle to stop the Fence Lake coal mine and preserve 
Zuni Salt Lake and the hundreds of cultural resource sits, 
aboriginal pilgrimage routes, shrines and ancestral remains 
within the lake and Sanctuary Zone, endured close to two 
decades beginning in the mid-1980s. Throughout this time, NEPA 
was an important tool in this effort. Without NEPA, the 
membership of the Coalition, affected Tribal Governments, 
organizations and individuals, Native and Non Native, would 
have been largely powerless to play any productive role in the 
decisionmaking process regarding this area of sacred land. We 
recognized that NEPA is oriented process rather than outcome 
and without its authority, we would not have been able to 
compel SRP to release the details of the coal mining production 
plan, nor had a clear avenue to express our sincere conviction 
to the U.S. Government of the devastating consequences the mine 
posed to the cultural, spiritual and environmental 
considerations to the land and the thousands of individuals 
that hold this sacred site to the utmost reverence. Without 
NEPA, we would have been both uninformed and voiceless.
    In 1990, the Bureau of Land Management, BLM, released an 
environmental impact statement for the proposed mine. The 
proposed coal mine would have extracted more than 80 million 
tons of coal from 18,000 acres of public land administered by 
the BLM, as well as some state and private land in Catron and 
Cibola counties, located 60 miles southeast of the Zuni Pueblo 
Indian Reservation in rural western New Mexico. The coal was to 
be transported 44 miles by a proposed rail line through the 
heart of the Sanctuary Zone that would have destroyed an 
incredible density of centuries old pilgrimage trails, shrines 
and ancestral remains of various tribes in the Southwest. These 
holy pilgrimage trails were used by our ancestors in their 
practice of our inherent ``religious freedom'' right to Zuni 
Salt Lake.
    The gravest threat that was posed by the Fence Lake Mine 
was the impact of the proposed under ground water pumping for 
dust control. Because the underground water would be pumped 
from the same aquifers feeding the Zuni Salt Lake, which is 
relatively small and only 4 to 5 deep, we were deeply concerned 
that the pumping could interrupt water flow to the Lake, 
resulting in lower water levels and even complete draining of 
the Lake. One of our most sacred sites would be sacrificed to 
control dust for cheap dirty coal.
    Through the EIS and because of NEPA, we were able to learn 
details of the coal mine and its relation to the Zuni Salt Lake 
and other sacred sites in the area. We were also able to 
participate in the decisionmaking and to strongly voice our 
objections to the desecrations promised by this ill-conceived 
project.
    NEPA also played an absolutely vital role in allowing for 
the incorporation and disclosure of new scientific studies that 
examined the potentially devastating impacts underground water 
pumping would have on Zuni Salt Lake.
    Armed with this and several other hydrological reports one 
of which simulated drawdowns as high as 13 feet, much larger 
than the depth of the lake, we once again turned to the NEPA 
process. We demanded another supplemental environmental impact 
statement be prepared to fully and accurately all of these 
hydrological sciences that the previous analyses had ignored. 
Less than a year later, under mounting pressure and 
increasing----
    Ms. McMorris. I just need to you wrap up.
    Mr. Seciwa. Under mounting pressure and increasing public 
scrutiny, SRP announced that it was abandoning the development 
of the Fence Lake Coal Mine in August 2002, almost one week 
from the three years of our effort.
    In our case, NEPA was instrumental in preserving Zuni Salt 
Lake and the Sanctuary Zone and many other sacred sites 
essential to Zuni and other Tribes' culture, religion and way 
of life. The diverse plant life and wildlife which rely upon 
the unspoiled habitat of this special sacred area also 
benefited.
    We do not use NEPA as an obstacle to the mine, but as a 
decisionmaking tool as it is intended to be. As any community 
would wish to do under similar circumstances, we employed 
NEPA's mandate to compel an unaccountable, out of state 
corporation and its Federal regulators to tell the truth about 
these impacts. This is perhaps NEPA's most important authority, 
ensuring the government tells the truth about the way in which 
actions will affect people, local communities, land, water, and 
life itself.
    I thank you for the opportunity to come before this Task 
Force and thank you for allowing this time. E'la: kwa [in Zuni] 
May you pass this day into the evening and happiness.
    Thank you very much.
    [The prepared statement of Mr. Seciwa follows:]

     Statement of Calbert A. Seciwa, Pueblo of Zuni Tribal Member, 
             Former Member of the Zuni Salt Lake Coalition

    Madame Chairwoman and distinguished members of the Task Force, 
thank you for inviting me to testify at this field hearing on the 
National Environmental Policy Act. I am Calbert A. Seciwa, an enrolled 
member of the Pueblo of Zuni Tribe, and one of the founding members of 
the Zuni Salt Lake Coalition. From the onset I state for the record 
that I declare my opposition to any amendments of the National 
Environmental Policy Act (NEPA). I give this testimony as an individual 
and do not intend to represent the Pueblo of Zuni Tribal Government.
    My testimony today will address the efforts of the Zuni Salt Lake 
Coalition in regards to the successful plan of action employed to 
protect a sacred site, Zuni Salt Lake, home of Ma'lokyattsk'I, the Salt 
Mother, and the associated Sanctuary Zone, where in ancient times 
warring tribes from the Southwest put down their weapons and shared in 
the sanctity of Salt Mother, from the negative environmental impacts 
that would have occurred by the development of the Fence Lake Coal 
Mine, that was proposed by the Salt River Project (SRP), an Arizona 
based utility company. The irrevocable negative consequences to this 
significant and sensitive environmental, culturally, and Sacred 
national resource of this nation, would have been tragedy affirmed. 
Without the NEPA the Zuni Salt Lake and Sanctuary Zone revered by 
countless of A:ho'e, People and sovereign tribal nations would not have 
been heard and their voices would not have been considered in the 
public decision making process of this country afforded by legislative 
authority of NEPA.
    The struggle to stop the Fence Lake coal mine and preserve Zuni 
Salt Lake, and the hundreds of cultural resource sites, aboriginal 
pilgrimage trials, shrines and ancestral remains within the lake and 
Sanctuary Zone, endured close to two decades beginning in the mid 
1980's. Throughout this time, the National Environmental Policy Act was 
a profoundly important tool in this effort. Without NEPA, the 
membership of the Zuni Salt Lake Coalition (ZSLC), affected Tribal 
Governments, organizations and individuals, Native and Non Native, 
would have been largely powerless to play any productive role in the 
decision making regarding this area of sacred land. We recognized that 
NEPA is orientated toward process rather than outcome and that without 
its authority we would have not have been able to compel SRP to release 
the details of the coal mining production plan, nor had a clear avenue 
to express our sincere conviction to the United States Government of 
the devastating consequences the mine posed to the cultural, spiritual, 
and environmental considerations to the land and the thousands of 
individuals that hold this sacred site in the utmost reverence. Without 
NEPA, we would have been both uninformed and voiceless.
    In 1990, the Bureau of Land Management (BLM), released an 
Environmental Impact Statement (EIS), for the proposed Fence Lake coal 
mine. The proposed coal mine would have extracted more than 80 million 
tons of coal from an 18,000 acre area of public land administered by 
the BLM, as well as some state and private land, in Catron and Cibola 
counties, located 60 miles southeast of the Zuni Pueblo Indian 
Reservation in rural west central New Mexico. The coal was to be 
transported 44 miles by a proposed rail line through the heart of the 
Sanctuary Zone that would have destroyed an incredible density of 
centuries old pilgrimage trails, shrines and ancestral remains of 
various tribes in the Southwest. These holy pilgrimage trails were used 
by our ancestors in their in practice of our inherent ``Religious 
Freedom'' right of the Zuni Salt Lake.
    The gravest threat that was posed by the Fence Lake Mine, however, 
was the impact of the proposed under groundwater pumping for dust 
control purposes, because the under groundwater would be pumped from 
the same aquifer feeding the Zuni Salt Lake, which is relatively small 
and only 3 to 5 feet deep. We were deeply concerned that the pumping 
could interrupt water flow to the Lake, resulting in lower water levels 
and even complete draining. One of our most sacred sites would be 
sacrificed to control dust for cheap dirty coal.
    Through the aforementioned EIS and because of NEPA, we were able to 
learn details of the coal mine and its relation to Zuni Salt Lake and 
other sacred sites. We were also able to participate in the decision 
making process and strongly voice our objections to the desecrations 
promised by this ill-conceived project.
    NEPA also played an absolutely vital role in allowing for the 
incorporation and disclosure of new scientific studies that examined 
the potentially devastating impacts groundwater pumping would have on 
Zuni Salt Lake. The original 1990 EIS for the proposed coal mine was 
flawed scientifically with regard to hydrology and failed to capture 
the cultural importance of the Zuni Salt Lake. After repeated demands 
from the Zuni Tribe to then Secretary of Interior, Bruce Babbitt and 
others, a supplemental EIS (SEIS), was conducted in 1996.
    Unfortunately, at this time the Office of Surface Mining (OSM), 
took over the lead agency status from the BLM and was responsible for 
preparing the SEIS. From our perspective, OSM views itself as a 
promoter than a regulator of the coal industry and was either unable or 
unwilling to comprehend or properly address the religious and cultural 
concerns of Native Americans. Likewise, environmental considerations 
raised by conservation organizations were given little credence. As a 
result, this SEIS was also deeply flawed and continued to dismiss 
evidence that the proposed under groundwater pumping would likely have 
destructive impacts on the Zuni Salt Lake. In fact, OSM concluded that 
``Zuni Salt Lake would experience negligible short and long term 
impacts to this quantity and quality of its underground water.''
    Our efforts continued and strengthened and our coalition broadened. 
We also studied in depth the potential hydrological impacts and were 
able to convince the Bureau of Indian Affairs to took its trust 
responsibilities seriously and conduct it own independent analysis of 
the evidence. This analysis, know as the King Report, was completed in 
2001, and as we would have expected, concluded that pumping in the 
quantities proposed would produce ``significant drawdown'' at the Zuni 
Salt Lake.
    Armed with this and several other hydrological reports, one of 
which simulated drawdowns as high as 13 feet, much larger than the 
depth of the lake, we once again turned to the NEPA process. We 
demanded that another supplement SEIS be prepared to fully and 
accurately address all of the hydrological science that the previous 
analyses had ignored. Less than a year later, under mounting pressure 
and increasing public scrutiny, SRP announced that it was abandoning 
the development of the Fence Lake Coal Mine in August 2002.
    In the case of the Fence Lake Mine, NEPA was instrumental in 
preserving Zuni Salt Lake and the Sanctuary Zone and many other sacred 
sites essential to Zuni and other tribes' culture, religion and way of 
life. The diverse plants and wildlife which rely upon the unspoiled 
habitat of this special sacred area also benefited. We did not use NEPA 
as an obstacle to the Fence Lake Mine but as the decision making tool 
it is intended to be. As any community would wish to do under similar 
circumstances, we employed NEPA's mandate to compel an unaccountable, 
out of state corporation, and its federal regulators, to tell the true 
story about theses impacts. This is perhaps NEPA's most important 
authority: Ensuring the government tells the truth about the way in 
which its action will affect people, local communities and the land, 
water, life itself. Facing the truth, SRP was forced to recognize that 
the costs of its project to Zuni and many other tribes of the Southwest 
and to the environment greatly outweighed the short term benefits of 
developing this area for cheap dirty coal.
    E'la: kwa, Thank You.
                                 ______
                                 
    Ms. McMorris. Thank you. I want to just take a moment to 
thank each one of you for being here today preparing excellent 
testimony. I thought it was a long haul, but it was well done 
by each one of you.
    We're going to start with some questions. We're going to go 
from Mr. Udall to Mr. Cannon to Mr. Grijalva and then me and 
then we'll just do it a couple of times.
    Thank you.
    Mr. Udall. We'll start with five minutes apiece and then--
--
    Mr. Udall. We're going to start a round of five minutes and 
thank you, Madam Chair, once again for being here and we 
appreciate all of your testimony and your willingness to stick 
around and for most of you to stick around. I don't know if 
Secretary Prukop is gone. I was--I look over, I was going to 
give her a question. But let me first of all, ask Mr. Seciwa 
from Zuni. You gave a rather dramatic example of how the Zuni 
Tribe felt that they were cut out of a project and the planning 
was going on and you were able through NEPA to present your 
expert testimony. I believe you hired experts that would talk 
about the damage to Salt Lake and you were able to present that 
and over time turn around the Federal Government in terms of 
the approach it was taking, so it's a pretty powerful statement 
in terms of a Tribe being able to put forward something very 
specific that is very sacred to them. That Salt Lake, your 
Pueblos have been going there for centuries and you were able 
to achieve a success. And my question is if you hadn't had the 
NEPA process and you've watched how sometimes with projects 
that the Federal Government moves forward on, how they can move 
forward very quickly and the other industries that are involved 
with those projects, do you think you would have been able to 
achieve this result that you talked about in your testimony?
    Mr. Seciwa. No. NEPA really gave us the authority to 
question and to ask specific questions in regards to the 
exercise that the Federal Government, the Bureau of Indian 
Affairs and OSM, the Office of Surface Mining went through in 
terms of appealing their trust responsibility duties to our 
particular nation.
    However, NEPA and the Pueblo Zuni efforts was not alone in 
this effort to stop this coal mine from happening and 
destroying a very sacred area. It also took the voices of 
thousands of people from throughout the country and abroad as 
well to be able to go before some of your Members of Congress, 
to make sure that your congressional delegations, our 
congressional delegations, make sure that the Department of the 
Interior, through OSM, through BLM, through BIA and all the 
alphabet soup under the Department of the Interior that has an 
impact on Native American people and lands, really lived up to 
their trust responsibility and adhere to all of the provisions 
that we asked for to be justified in this development.
    Mr. Udall. Thank you very much for that answer. Councilor 
Heinrich. You talked and mention that in your experience the 
NEPA process leads to final outcomes that have community buy 
in. Do you think the Federal agencies have an incentive to seek 
this kind of buy in absent NEPA? And for example, to your 
knowledge, were Federal water projects in the West sensitive to 
the needs of local communities prior to 1970 when NEPA was 
adopted?
    Mr. Heinrich. Thank you, Congressman Udall, Chairwoman 
McMorris. I actually was very interested in the example that 
Mr. Madrid from Congressman Udall's office brought up because 
I've been aware of the Jetty Jack situation for a very long 
time and they are a situation that causes a lot of problems for 
fire fighters.
    Mr. Udall. Just for the record, it is Mr. Madrid from 
Congresswoman Wilson.
    Mr. Heinrich. I apologize.
    Mr. Udall. That's OK, I didn't mean to interrupt you there.
    Mr. Heinrich. Mr. Tito Madrid from Congresswoman Wilson's 
office. And that was actually an outcome that I think happened, 
in part, because it was a quick decision made at a time when 
the Bureau of Reclamation and the Army Corps of Engineers and 
some of those agencies didn't have to comply with NEPA. And 
those particular structures were put into the Rio Grande 
through the heart of Albuquerque and in many other places 
without any thought to what the long-term consequences were 
going to be.
    The City, as well, as many other Federal agencies are now 
in the process of removing those and looking at how do we best 
keep our Bosque forest both healthy and less flammable because 
as Mr. Madrid mentioned, as you have this conversion, that is 
very much the--in part, the outcome of Federal water decisions. 
We have a less healthy forest, but we also have a much more 
dangerous forest and I think that could have been avoided with 
the kind of analysis that NEPA includes.
    I think very much in terms of the drinking water case, that 
was an enormous project. It's a project where inherently no 
matter what decision the City of Albuquerque, the Albuquerque-
Bernalillo County Water Authority and other decisionmakers 
made, there were going to be people who were not happy with the 
outcome.
    I'm sure there are some people, some river advocates are 
very unhappy that there's a diversion structure at all, but we 
have one of the most flexible in terms of management responsive 
to the needs of wildlife and irrigators than other structure 
that you can imagine, a structure that is safe for people who 
use the river. A lot of changes were made and a lot of things 
were incorporated into that project because we had everyone at 
the table and we were forced to do that. I think sometimes it's 
very hard to get everybody to the table unless you have to. And 
usually, whether the people at the table agree with you or 
disagree with you, I very much believe that their input is 
valuable and we need to listen to everyone.
    Mr. Udall. Thank you. And we've seen the same kind of buy 
in with our water shed thinning up in the Santa Fe watershed.
    Mr. Heinrich. Exactly.
    Mr. Udall. Where it took a period of time and you had a 
large range of opinion, but people came together and came up 
with a project where there was no litigation and it was really 
truly something that led us forward, so I appreciate your 
comments there.
    Ms. McMorris. Thank you. Mr. Cannon.
    Mr. Cannon. Thank you, Madam Chair. This has been a very 
interesting panel. I want to thank all of our panelists. I 
remind you that your whole statement will be included in the 
record and reviewed. It's been very interesting. It's been a 
pleasure to be here with you. I think there's a consensus, not 
on everything, but certainly on the fact that we can improve 
how we apply NEPA at least and probably some changes are 
appropriate.
    I couldn't help thinking when Ms. Budd-Falen was speaking 
that as a multi-generational rancher and we have three here at 
least, there's a problem. You have to have a lawyer in the 
family. You have to pay your death taxes if you're going to 
pass it on and that means you take an integration operation 
that probably works pretty well and in effect, the financing. I 
guess that's why you need a banker in the family as well.
    Ms. Budd-Falen. That's correct.
    Mr. Cannon. And so if we're going to have a family ranch 
which I think is important to America, if we have a whole bunch 
of burdens, I'd like to just ask anybody on the panel if they'd 
like to respond, in the minimum, what do we do to deal with 
this pile of documents in front of Ms. Budd-Falen? In other 
words, it's one thing for a city to spend its resources to come 
to a conclusion or a tribe to deal with a problem and these are 
all appropriate, but what do we do when we put a burden on 
family ranching or farming that results in dealing with a pile 
of documents like this? Does anybody want to address that?
    Yes, Mr. Shipps.
    Mr. Shipps. If I could, Mr. Cannon, it seems to me that the 
issue as it applies to the particular family shows how 
burdensome NEPA can be, but at the same time and this is the 
difficulty, I'm not providing an answer, but pointing out the 
difficulty. If you also take the testimony of Witness Blancett 
and then talk about cumulative impacts and each of those--which 
is right now, NEPA requires that you measure not just the 
direct, but also the indirect and the cumulative impacts of 
Federal action, you get to the point where proliferation of 
individual decisions, even though it may be the family farm is 
very intrusive as to them, ends up being something that is 
demanded to be evaluated by citizens' groups who are trying to 
look at a bigger picture than what's happening on that family 
farm. That's part of the difficulty.
    Mr. Cannon. That's exactly the issue. I think you've stated 
it very, very well, very articulately. What do we do in the 
process when the larger good requires an extraordinary burden 
on the individual farmer, rancher or family business?
    Ms. Budd-Falen?
    Ms. Budd-Falen. For the family rancher, one of the problems 
that we have is you analyze the same decision so many different 
times. For example, if I've got a term grazing permit on 
Federal land, grazing on the Federal lands in general is going 
to be analyzed through NEPA, through a land use planning 
process. Those are very big documents. They analyze whether 
grazing should occur on a national forest or a unit of BLM land 
and grazing is absolutely analyzed there.
    Then you have to go through a second NEPA analysis on my 
term grazing permit, when you've already analyzed whether 
grazing should occur on a national forest or a unit of BLM land 
and grazing is absolutely analyzed there. Then you have to go 
through a second NEPA analysis on my term grazing permit, when 
you've already analyzed whether grazing should occur on all of 
these allotments, in general. Already done cumulative impact 
analysis, and already looked at socio-economic analysis. Then 
so I as a rancher have to comment on the big land use plan. 
Then they do another NEPA analysis over land that they've 
already analyzed in the same NEPA plan. Then, if I decide to do 
an allotment management plan, I have to go through my third 
NEPA analysis on the same cattle operation, on the same 
grazing. You have to go through the big cumulative impacts 
analysis. You have to go through all of the various burdens, so 
I think that one of the things that would help family ranchers 
and farmers, quite frankly, is only make us go through the 
process once, not over and over again on the same grazing 
allotment.
    Mr. Cannon. Thank you and of course, we're talking about 
family farmers and ranchers who have the particular burden of 
death taxes and destroying a family operation.
    But the same thing goes, I think, and having worked with 
the Bill Barrett Corporation and various other corporations who 
are dealing with gas discovery, the cost is remarkable. In 
situations where we don't--I think there ought to be consensus, 
except by those extremists who don't want us to have oil and 
gas, who celebrate the $2.50 that we're now paying for gas at 
the pump and who don't want us to develop it whereas there are 
many ways, as I think it has become evidence that we can make 
this process work better without violating some of the ideas 
that have been presented.
    I'd actually just like to end by reminding you all of what 
Tweeti Blancett said because it's what I said to start and that 
is that many in this room, living in the West are no longer 
Republicans, Democrats, liberals or conservatives, 
environmentalist or ranchers first. We're Americans. We want to 
protect our land. We also want to balance these issues 
thoughtfully so that we have oil and gas at a price that makes 
sense so that we have beef at a price that makes sense, so that 
we have ranchers that don't get driven out of business, so that 
we have a society that actually works well.
    So I want to thank our panelists, Mr. Grijalva, Mr. Udall, 
Madam Chairman for holding this hearing and I yield back.
    Ms. McMorris. Thank you. Mr. Grijalva.
    Mr. Grijalva. Thank you, Madam Chair. Let me, if I may, I'm 
going to direct this one to Mr. Brown. In your testimony and I 
think it was repeated by Mr. Fraley or someone else also said 
the same thing, that part of the issue we're dealing with here, 
other than the obvious is the issue of cost and that is that 
the NEPA process and the agencies do require additional 
resources and those resources are not there. Potentially, that 
could expedite, it could make things more efficient and I think 
we all tend to agree with you on that point.
    But I was going to ask were you aware that on July 19th, 
the BLM announced it planned to charge permit applicants fees 
to cover the cost of permit approvals and then use the revenue 
to make the approval process more efficient and there are 
different scales to it, energy exploration, you know, 
unintended costs, family farm and the grazing issue, and 
attendant costs. Were you aware of that?
    Mr. Brown. Yes, I was, Congressman, and in response to that 
we were concerned about that in terms of that cost recovery 
proposal. First is the fees seemed exorbitant. They would 
escalate. There's also a provision that they could go in and 
adjust these any time they want.
    I think the important thing to remember----
    Mr. Grijalva. The consequence of that opposition is now in 
the energy bill we passed, there's a prohibition on Federal 
agencies to do any cost recovery in terms of the work they need 
to do in this NEPA process.
    Mr. Brown. Right. I haven't seen exact language, but I can 
tell you this, is that the oil and gas companies have spent 
untold millions of dollars doing things that the agencies were 
charged to do such as archeological clearances before we go out 
and do any surface disturbance. We have to have an 
archeological clearance. There's sometimes--in fact, almost 
now, it's almost mandatory. We have to get threatened and 
endangered species clearances done. And we also pay for a lot 
of the third party NEPA analysis, whether it be an EA or an 
EIS. And some of those costs for an EIS, a complex EIS on a 
project level can easily exceed $1 million.
    So that's the reason why there's concerns from industry 
about how that proposal was put together was because we already 
pick up a lot of the costs to operate on public lands.
    Mr. Grijalva. So in effect, BLM is attempting to do--to 
implement a plan that some have suggested and you suggested 
earlier in your testimony to increase the funding for the NEPA 
process, get stopped. So if the users who benefit from these 
permits--if the users don't fund the process, that leaves the 
situation where it is and that's the taxpayers funding that.
    Mr. Brown. Well, one of the options could be if fees were 
collected, if they could be returned back to the office where 
the work is being conducted, that would certainly be one thing 
that would make it look more advantageous. The problem is that 
the way those funds were originally as we understood it, they 
would go back to the general treasury. So again, putting it 
back in the office where the work is to be done would be one 
advantage.
    Mr. Grijalva. Last point, as far as you know, has your 
company ever been a plaintiff in litigation where NEPA was one 
of the causes of action?
    Mr. Brown. You mean in terms of being appealed by outside 
groups?
    Mr. Grijalva. Yes.
    Mr. Brown. Yes sir. Our projects have been subject to 
litigation.
    Mr. Grijalva. So you were a plaintiff?
    Mr. Brown. No, we were the person proposing the project, so 
I don't recall any cases where we have actually filed actions 
against the Federal Government for a NEPA decision as I can 
think of. But we have been subject to litigation from 
protesting or litigants against our projects.
    Mr. Grijalva. I just had a point, Ms. Montoya. I thought 
your testimony was good and I think you made a distinction and 
I think that distinction as we go through this process is a 
very important distinction. Part of the drive that got us here 
has been gas and oil. I'll just be blunt about that and the 
present stewards and a lot of other users are the ranchers and 
the farmers. And how this--how these hearings, whatever comes 
out of this hearing balances those two and that's why I 
appreciate your testimony, how to balance the exploration and 
development demand on the part of energy versus quite frankly, 
the need to protect way of life and industry and an economic 
base there for many, many families, so I appreciate your 
testimony.
    I yield back.
    Ms. McMorris. OK, thank you. Mr. Brown?
    Mr. Brown. I just wanted to clarify a question from the 
Congressman. When he asked about litigation, there have been 
cases where BP has joined them on administrative appeals of 
decisions from agencies, but we have not gotten the point of 
actually getting into litigating the case. It's been through 
administrative process through the agency, just so just to 
clarify that answer. I'm sorry.
    Mr. Grijalva. OK, thank you.
    Ms. McMorris. Thanks. Mr. Bradley, I wanted to just get a 
little deeper into what you had suggested as far as the state's 
role in NEPA and I wanted to ask does New Mexico have a similar 
like State Environmental Policy Act? I know like Washington 
State does and some of the other states do. Does New Mexico 
have such a similar law?
    Mr. Bradley. We do have and through the Environment 
Department, we have our environmental checks and balances and 
laws, but it's not as extensive as the NEPA process. The NEPA 
process is certainly much more broad and frankly, my experience 
through it after taking a joint lead, I don't see anything 
wrong with it other than the two things that I discovered as we 
went through that. So the biggest problem is that the Federal 
agencies will go to a state agency and ask for help without the 
Administration even exactly knowing what's going on.
    So there's kind of a cloaking that's going on that we 
discovered when we went through the process and I think that 
all should be wide open. But we do have some processes and in 
our case we did have a conflict in one of those that we worked 
through with the Secretary. But had we not taken joint lead, we 
would not have had that ability.
    Ms. McMorris. Can you share why you were first denied that 
joint lead status?
    Mr. Bradley. Well, yes. They didn't want us to do it. They 
just flat said we don't need that and I said--I had to pull out 
the law and the regulations and point it out to them. Frankly, 
their first go at us was they did not see a need for the state 
to take joint lead because after all, they would use 
cooperating agency status with different people. But then my 
investigation, I found out that that's where they didn't 
exactly open the door. They picked who they wanted cooperating 
agency with, so frankly, we had to pursue it with vigor, I 
should say and bring our congressional delegation in on the 
request and then it was done. But it took a lot of effort to 
make it happen.
    Frankly, my personal belief is Federal agency did not want 
the state to have that open door, being a full partner, that 
means and this is what we discovered and that's the reason it 
worked, that means the state will have access to all the data 
that the Federal Government is going to have and so there 
wasn't any cloaking. There was no hiding of any of that 
information. And that's how, as I pointed out, the OVR data. In 
the past, that would never have surfaced had we not had joint 
lead, because I asked what data are you using on migration of 
wildlife. And that's when they brought this in in the State of 
New Mexico. Dr. Fowler at New Mexico State did three-year study 
of migration of wildlife and I brought that forward and said 
unless you can counter this, I don't believe we're going to 
agree to fences or gates.
    Ms. McMorris. And you think further defining of what kind 
of science we use, the sound peer reviews might address some of 
those?
    Mr. Bradley. Definitely, definitely. The silvery minnow was 
a great case in point. We have the conservancy here, but the 
first issue on the silvery minnow that was brought to the State 
of New Mexico from the U.S. Fish and Wildlife was that our 
first response, when I asked where did you get the data to 
declare a critical habitat area, they said you provided it. I 
said oh, OK, where? They told me and I went there and I'm still 
waiting for that data. It has never shown up because we didn't 
do it. Therefore, it took a Court case to discover that the 
initial data that the Federal agency used was a master thesis. 
But we don't need to go through that. We don't need to spend 
taxpayers' money on Court cases.
    Get good, sound peer-reviewable science when you're doing 
these assessments and you'll eliminate all of those kind of 
problems, but it goes away because then how do you challenge 
that? I've had several examples of that through the eight years 
that I was Lieutenant Governor.
    Ms. McMorris. Good, thank you. I wonder how much time I 
have.
    Mr. Udall. You have 12 seconds.
    Ms. McMorris. OK, then I'm going to go to Oregon, while I 
have the yellow light and ask one question. And I appreciate 
you making the trip today. I was really impressed with the 
group that had come together in Oregon that was such a broad-
based group to really look at what was going on with the forest 
as it related to, especially fires and I wanted to ask if you 
had ever requested one of the expedited--when we were in Texas, 
we heard where the Forest Service came in and asked for an 
expedited--what were they called? Alternative arrangement where 
Council on Environmental Quality could come in and make a 
quicker decision. And this was related to blow-down with trees.
    But I was just wondering if you thought that reforestation 
should be subject to that kind of review and process, rather 
than the whole EIS process and if you had requested any kind of 
alternative review?
    Ms. Kupillas. No, Congresswoman McMorris. We've tried to 
stay out of the politics of actually being actively involved in 
any of the forest processes themselves, but just trying to get 
at the regulatory language. We believe that that process could 
be used to expedite recovery in the forest, however, CEQ has 
chosen never to use it and CEQ also--even though we believe 
that they have the authority to. So I think they probably need 
some more direct authority to tell them to be able to use this.
    Ms. McMorris. OK, thank you.
    Mr. Udall. Thank you, Lieutenant Governor Bradley, your 
idea on this co-lead which sounded like it ended up with a good 
result, I'm trying to think it out a little bit further into 
other Federal agencies and I'm wondering what you would think 
about in terms of co-leads with the Department of Defense in 
managing a military facility. Wouldn't we like to retain the 
discretion over granting co-lead status in that kind of 
situation where you have the expertise in terms of the agency 
and not give a blanket. If your suggestion were adopted, would 
you give some kind of flexibility there, rather than making it 
mandatory across the board?
    Mr. Bradley. Well, I think, my suggestion, Congressman is 
dealing with NEPA, with the NEPA Act. It's not going into 
Department of Defense, other than if it's an environmental 
issue with a Department of Defense, and we've had plenty of 
those particular battles, however, the Department of Defense 
base, as you well know, is excluded from most of those issues 
and at that point if and when a base is--as we're going through 
right with the BRAC, if a base is closed, then there is an 
environmental issue and it usually gets a lot of money that you 
have to contend with on how to clean up because in many cases 
they get swept under the door until that happens. We've had 
that experience before here in the State of New Mexico. So I 
don't have a problem in giving them an exclusion unless it fell 
under NEPA and I don't see the difference between a military 
base having to follow NEPA as well as the rest of the United 
States.
    Mr. Udall. One of the remarkable things, and you mentioned 
about the Department of Defense and their review processes is 
that they have been one of the agencies that has been the most 
successful in terms of recovering and moving forward with 
endangered species issues. On many of their bases they have 
endangered species issues and they work in a very disciplined 
way to try to do something about it. It's remarkable to me to 
see when many of these folks come before our committees in 
Washington, how dedicated they are to following the law and 
when they put their mind to it, the results that they can get. 
They're clearly involved in that.
    Let me shift over to Tweeti Blancett. I know that you and 
your husband Lin have over several generations worked the land 
and cared for the land a lot and as a rancher in northwestern 
New Mexico have a great deal of concern as to what you're 
seeing.
    Could you describe for the panel a little bit of what you 
were trying to portray by putting that on the front of your 
testimony there? You didn't talk about it that much in your 
actual testimony, but could you tell the panel a little bit and 
that's exactly, Madam Chair, what we're looking at.
    Ms. Blancett. Sure. This is our grazing allotment that's 
been our family since the 1800s. We were there before tailored 
grazing. And before NEPA and before FLPMA. So we have a long 
heritage in this area.
    If you notice the red up in the northwest corner, that's 
where our ranch headquarters are. It's along the Animas River 
and something that I would like--you have an arrow pointed to 
the northwest corner of the map.
    Do you need one, ma'am?
    Ms. McMorris. No.
    Ms. Blancett. OK.
    Mr. Udall. She's got one right there.
    Ms. Blancett. That is the only bench in the entire San Juan 
County, along the Animas River that has not been breached. It 
is protected with NEPA. We've used NEPA for the last 25 years 
to keep that protected. Not that we're against oil and gas 
development. We are against it not being done correctly, but 
we're not against oil and gas development. But I think you can 
see, this is 32,000 acres, 95 percent of it is Federal land. 
There's 500 wells, 800 miles of road and 11,000 acres of the 
32,000 acres are impacted by pipelines.
    When I made my statement that multi-use and split estates 
are going to be coming to you, because you are our Congressman 
and Congresswoman to make decisions on all across the West, I 
want to show you where the impact has made ranching and multi-
use in this area. I'm not talking about other ranches in San 
Juan County. I'm talking about the fairway of the largest oil 
and gas field in the entire United States.
    When you have impacts like this, it's so fragmented that 
you can no longer conduct a viable ranching enterprise. And you 
are going to have to be making decisions and as you look at 
NEPA, I hope that you will look at cumulative impacts long 
range because this map tells you what the roads, the pipelines, 
the well locations, the noxious weeds, the contamination are 
going to be, not just here in Northwest New Mexico, but across 
the Rocky Mountain West where we have extensive development.
    It can be done right. It is being done right in certain 
places on my ranch. But it isn't being done in the majority of 
cases on my ranch. And not because it can't be done, because 
industry is choosing not to do it in certain places.
    Mr. Udall. Thank you.
    Mr. Cannon. Can I just follow up on this map, Ms. Blancett? 
Do you have any ranching operations in Colorado, Utah or 
Arizona or are you all in New Mexico?
    Ms. Blancett. Now I'm all in New Mexico. I was in Colorado 
on a Federal forest grazing permit.
    Mr. Cannon. How far is your northern border from Colorado?
    Ms. Blancett. Actually, the Ute Reservation is my neighbor. 
That is the Colorado border.
    Mr. Cannon. Do you have any school trust lands on your 
ranch?
    Ms. Blancett. On this ranch, there are five sections of 
school trust lands, yes. With--we have the grazing permit on.
    Mr. Cannon. And have those been developed?
    Ms. Blancett. Yes, everything has been developed.
    Mr. Cannon. I just want you to know that we care about our 
school trust lands in Utah. We're going to try to consolidate 
them so we can get some of that oil and gas out and pay for our 
school kids.
    Ms. Blancett. Certainly.
    Mr. Cannon. These wells were drilled over what period of 
time?
    Ms. Blancett. They started drilling on our ranch in 1952.
    Mr. Cannon. And I take it all the white little squares that 
you see on here, are those drill pads?
    Ms. Blancett. Those are drill pads, compressor stations, 
water disposals or pipelines or compressor plants.
    Mr. Cannon. I suspect if these were drilled today that many 
of those sites would be--you would reduce them by two or three 
or four or five, to be one fifth or so. It's just that we're 
doing some new development in Sevier County, Utah, the biggest 
new oil find in America is there and they've got 12 wells, 10 
or 12 wells on about what is claimed to be about two or three 
acres in two different sites.
    I suspect that if we were drilling these today, that we'd 
have many fewer sites. Maybe Mr. Brown, you could comment on 
that?
    Mr. Brown. Yes. Just like Mr. Fraley was talking about 
earlier and I'll probably defer to him to answer this as well, 
but we are trying to consolidate our operations to try and 
reduce our footprint as small as possible and that's one of our 
goals and objectives as we have anywhere we're operating today.
    A lot of these are older wells that were drilled many, many 
years ago as Ms. Blancett mentioned, but we are trying to 
consolidate and reduce that footprint.
    Mr. Cannon. Thank you, Mr. Zavadil, how does the cost of 
NEPA delays you face translate into costs for consumers?
    Mr. Zavadil. Natural gas is a unique commodity in that it's 
very inelastic, both on the supply and demand side. The very 
small change in the supply of natural gas has a 
disproportionate effect on the price. Over the course of the 
last two or three years, four years, we've lost about 3 to 4 
percent of the supply in this country and prices had increased 
by a factor of 300 to 400 percent. We were literally looking at 
$2 an MCF gas. Three years ago, we lost 30 percent of our 
supply and that price has tripled to over $7 in MCF at this 
time.
    So through the NEPA process, if natural gas development is 
slowed and it takes a very small change in the rate of 
production of the natural gas to have a dramatic impact on the 
price paid by consumers, if we could increase the rate of 
production of natural gas by 1 percent a year in this country, 
just a very small incremental change in increase in production 
of gas and given the fact that a lot of it comes from Federal 
lands, that's possible. We could say about $20 billion to 
consumers. It's about $100 a family a year.
    Mr. Cannon. A hundred dollars a family a year, thank you. 
That's very helpful. I think there's a consensus that we know 
where a lot of oil and gas is. We ought to be able to get it 
and do it thoughtfully and as a matter of fact, getting back to 
Mr. Bradley, your point, you were incredibly articulate. I 
loved your terms cloaking and hiding and you're tying that 
sanction. We passed the Data Quality Act, but we haven't done a 
very good job of enforcing that and that's what gives you the 
right to get that data.
    May I just suggest to you and for the record that in fact, 
what we need to be doing with data is since peer review is 
difficult, you've got to make decisions on what data you have. 
Let's at least be transparent about what we have so if it's a 
master's thesis, we get to ask the guy who did the thesis who 
his advisors were and what his criteria were and see the data 
so we can reevaluate the data.
    Mr. Bradley. Exactly.
    Mr. Cannon. In other words, if it's not worth doing with a 
peer-reviewed article and we have something, let's at least let 
the people who want to comment see the data and the biggest 
problem we've had in my experience with many of the recent 
debates, including global warming is the hiding of the data, so 
they're not transparent, so we can't review it. And so let me 
suggest that the transparency of data and the Data Quality Act 
are vitally important in how we make NEPA actually work.
    Let me just ask for the panel anyone who would like to ask, 
what the effect of requiring participation in the NEPA process 
would be as a requirement to appeal the result that would 
encourage participation, but it would also limit the amount of 
litigation subsequent. Any comments on that? And I yield back 
in anticipation of the answers.
    Mr. Brown. I'll try and answer that one. The way the delay 
works right is that to be a person that's going to appeal or is 
going to litigation as I understand it is you have to 
participate in the public comment process. In other words, once 
a draft is issued, you have to submit comments on that draft 
and then from that depending on how the final document comes 
out, you can go through and protest or challenge any content 
that you have problems with.
    That seems to work well. It does encourage participation by 
interested parties, but that is typically the way it works now 
and I'm not sure that particular action is reducing any 
litigation, I can tell you that. But it is the way it works 
now.
    Ms. Budd-Falen. Actually, it depends on the administrative 
agency and the regulatory requirements of the individual 
administrative agency. When you litigate over a Federal agency 
action, you have to exhaust administrative remedies. Some of 
those administrative requirements require that you comment on 
the draft before you can appeal the final and go through the 
administrative process before you can get into Federal Court. 
Some administrative agencies don't, however. Some 
administrative agencies, you don't have ever had to look at the 
document, you simply file your appeal, get through the 
administrative process and go on to Federal Court. So really, 
the comment part is not a product of NEPA, the product of the 
Administrative Procedures Act and whether the APA applies.
    But I would absolutely agree that so far it doesn't seem to 
matter in terms of litigation, because all you have to do 
according to the Court's to participate in an APA process is 
your issue had to have been raised somewhere, whether it was by 
you or someone else. So you just look at the comments, find 
somebody else who complained about the same thing you wanted to 
complain, off to Court you go and I don't--I think that maybe 
that should be strengthened to sort of limit some of the 
litigation, but right now it doesn't seem to matter. We can 
litigate over anything.
    Ms. McMorris. Anyone else? Yes?
    Mr. Bradley. Madam Chairwoman, the only thing I'd follow up 
with that is if we had access to this fuzzy science, maybe we 
would eliminate a lot of those lawsuits that we're coming out 
there.
    Ms. McMorris. Mr. Grijalva.
    Mr. Grijalva. Thank you very much. Mr. Fraley, let me just 
ask you two or three questions. In a press release dated July 
28, 2005, your company announces four consecutive quarterly 
earnings record. The release also announced that your total 
production increased 4 percent to 2879 million cubic feet of 
natural gas equivalent per day which is an all-time quarterly 
volume record, according to your release. In effect, then 
Burlington is producing more gas and earning more revenue than 
ever.
    So my question is this, how should this Task Force square 
these facts with your testimony regarding the burden created by 
NEPA compliance? I think you're doing well and you told us NEPA 
was holding you up.
    Mr. Fraley. Well, I think we are doing well and I think 
part of that is because of the dramatic increase in price that 
we've seen. In terms of production increases that we've 
realized in the last few years, a lot of that has occurred in 
South Texas, Oklahoma, Louisiana and more particularly Canada. 
Our gas production in the Four Corners area has been flat to 
down. Last year, we kept virtually flat. This year we're down 
some. And so it's been, in other areas where we don't have as 
much operations on Federal lands.
    Mr. Grijalva. That same release does say that the 
production from the San Juan Basin was down last year, but 
lists unscheduled maintenance performed by pipeline companies 
serving the area and lingering impact on unfavorable weather 
earlier this year is the reasons. And I'm begging the question, 
if the NEPA compliance has serious impact on production, why is 
it not mentioned in this press release for the San Juan Basin?
    Mr. Fraley. I think when we mentioned impacts to 
production, we mentioned the major issues and the major issues 
have been weather and impact from the companies that we work 
with to get gas to market and the weather has had a huge impact 
on activity as well.
    Mr. Grijalva. Thank you. I'm directing the questions, thank 
you. I have a couple of questions, given the limited time.
    Ms. Kupillas, Communities for Healthy Forests. I think one 
of the central points, as I read and listened to your testimony 
and your written testimony is that EIS on logging after the 
Biscuit fire took too long and that length of time is the 
problem. Am I correct?
    Ms. Kupillas. Yes. You're absolutely correct. In fact, I 
have a news article that came out Saturday, July 30th where the 
Federal Judge dismissed the lawsuit. This is three years after 
the fire which is too late to actually recover any of the 
material out there.
    Mr. Grijalva. Let's talk about that recovery. The Forest 
Service released a scoping proposal March of 2003, I think it 
was less than six months after the fire for logging about 90 
million board feet. The Forest Service had a draft EIS that was 
ready by July 2003, 10 months after the fire. They withheld 
releasing that report for about four months to wait for what is 
known as the Sessions Report. What is the Sessions Report?
    Ms. Kupillas. Dr. John Sessions is a scientist from Oregon 
State University. He's a forest economist. And Doug Robertson, 
a Commissioner from Douglas County had asked that he look at 
what are the economics of the burned over area. Should we 
remove the dead material----
    Mr. Grijalva. And that's one of the recommendations of 90 
million to 2 billion in board----
    Ms. Kupillas. It wasn't actually a recommendation. He 
actually answered a question about what are the economics, what 
are the economics of the Biscuit fire if we are to look at it 
purely as an economic issue. We realize that 50 percent of the 
burned over area--55 percent of the burned over was wilderness 
area and so that was excluded from any kind of removing dead 
material whatsoever.
    Mr. Grijalva. OK, and then the Forest Service released 
another alternative which was, I think, 500 million, right?
    Ms. Kupillas. Right.
    Mr. Grijalva. And that is the one that is the preferred 
alternative and that's the one that drew so much public comment 
and litigation that you spoke to?
    Ms. Kupillas. Exactly.
    Mr. Grijalva. I don't know if that is necessarily a NEPA 
issue as much as it was a little over reaching on the part of 
the Commissioners, on the part of the Forest Service and the 
Commissioners, appropriately so, interjected themselves in the 
process and saying we have a different recommendation that is 
insisting on more recovery and more logging.
    Why does NEPA bear the responsibility in this instance for 
the delays as much of the litigation was caused by that action 
that I'm trying to outline here?
    Ms. Kupillas. It depends on your viewpoint. I believe that 
a lot of delays were because the NEPA analysis, actually, they 
got through it in a fairly timely manner, but it was the 
lawsuits afterwards and increasingly, the lawsuits that came 
after the NEPA process that were appealing the procedural 
issues involved in that. It wasn't necessarily the board feet, 
it was appealing the procedural issues in NEPA that caused the 
lawsuits, and then, of course, they were proven, they were 
dismissed by the Courts. And so the people who used NEPA 
delayed long enough that there's no value out there and so they 
know that the logging will not occur now.
    Mr. Grijalva. Thank you. Madam Chair, I cutoff counsel 
here, he was trying to answer a question. Will you indulge me?
    Ms. McMorris. Yes.
    Mr. Shipps. Yes. I just wanted to add that with respect to 
the San Juan Basin and particularly with respect to coal bed 
methane development, a large portion of which is located on the 
Southern Ute Indian Reservation, we are now seeing declines on 
an annual basis that vary between 7 and 12 percent declines 
with respect to existing production. So it's not just a 
question of having marketing facilities being down on a 
temporary basis, it's the resource itself that's being 
depleted. It's a finite resource.
    In Colorado, there's a proposal right now that's pending to 
increase the density of drilling in order to increase the 
ultimate amount of recovery that can be obtained relative to 
that resource, but in light of the new kind of technology 
that's being developed, any of those new wells are going to be 
located on existing well pads and simultaneously the Southern 
Ute Tribe has recommended that as a condition for going 
forward, all existing compressors in this area adopt the best 
new technology, and we actually think we're going to end up 
having cumulative recovery of air quality by imposing that not 
just on new facilities, but on existing facilities in the same 
area and still obtaining increased development.
    Mr. Grijalva. Thank you. I yield back, Madam Chair.
    Ms. McMorris. Well, as often happens at these types of 
events, we never have as much time as we would like. And I, 
unfortunately, am on a tight time schedule myself. So this--I'm 
going to ask if we can just ask, if you have concluding remarks 
or a burning question, we'll do one more quick round and then 
we're going to have to wrap it up.
    Mr. Udall. Thank you, Madam Chair. Let me thank you once 
again for this hearing and all of the witnesses that have come 
here today.
    There is a question that's been raised that's a part of 
this and I'd like the folks from oil and gas and any other 
panelist to comment on. We've seen in previous testimony before 
this Committee and we've heard a little bit about it here, the 
idea of categorical exclusions and small amounts of land. I 
think it's in somebody's testimony today that where you have a 
well pad and five acres, and the road leading into that that 
maybe these should be considered as a categorical exclusion. 
And it seems to me the contrast and we've been educated today 
by a couple of the ranchers that have been here that it isn't 
just the issue of the one well pad, it's the issue of the 
entire basin or the entire grazing permit or whatever it is and 
the large, in some cases, large numbers of these five-acre well 
pads and roads and development.
    So my question really is to all of you as a panel is how do 
we move forward on this? Isn't NEPA the process to look at the 
overall health of the land and the impact it's going to have, 
yet at the same time getting the production of oil and gas that 
clearly this country needs? I don't know who wants to lead on 
that.
    Mr. Brown. I'll address that because I have it in my detail 
recommendations to you. The categorical exclusion process is 
really designed to be a first look at a project proposal and 
decide whether or not it needs to be bumped up to an 
environmental assessment. There were a number of examples I 
gave. There's even more I can provide you, but the idea is to 
look at these on a case by case basis and for those who don't 
reach the level of environmental impacts being anticipated, 
they can either be mitigated. If they're very small, they can 
be mitigated. You move forward to categorical exclusion review 
and approve the project.
    That was the intent of the proposal. It doesn't mean that 
you're not balancing environmental protection with development. 
It just means that you're looking at that project proposal and 
deciding whether it needs a higher level analysis.
    Mr. Udall. Thank you, Mr. Brown.
    Mr. Fraley. The only thing I would add to that is as Ms. 
Budd-Falen mentioned, one of the things we run into is that you 
have multiple levels of environmental assessment that occur, so 
when you do a resource management plan as has been done in the 
San Juan Basin recently, there is an environmental impact 
statement that goes along with that and as Mr. Brown mentioned, 
that's either good science or bad science as mentioned by Mr. 
Bradley, but you've got to determine beyond that how much more 
additional review is needed for each location that is then 
disturbed. And I think I agree with Dave in his comments as 
well.
    Mr. Zavadil. I'll provide a third perspective from the oil 
and gas industry and that is that cumulative impacts are often 
analyzed in environmental impact statements. It's when we fall 
back to the individual site-specific analysis is where I 
believe the categorical exclusion is better applied. 
Ultimately, if you're developing thousands of wells, NEPA 
clearly is going to tell us to analyze the cumulative impacts 
of those actions, but it's down to that single well that's 
being developed under the programmatic analysis that I believe 
the categorical exclusion could be best applied to.
    Mr. Udall. OK, thank you. Go ahead, Ms. Montoya.
    Ms. Montoya. As a rancher, I believe that if we would--in 
our area we can consolidate--they come in and they're going to 
survey for a pipeline or a well or whatever, if they come out 
and talk to us and we can go over it with them and maybe pick a 
piece of ground that's not as--the grass is not as good and 
there's a place that's much better to put it. And we have done 
that a lot of times. And there's a window that they can move 
over. And if they follow the pipelines and the roads together, 
they can eliminate a lot of damage too.
    So I think if they work with the ranchers first and let us 
help them, that is the part that we want to be able to do. I 
think we can eliminate a lot of damage because have--there's 
times that we have 10 wells coming in at one time and I mean 
there's a lot of damage out there. So we try to eliminate it 
and consolidate everything that we can to have it together.
    Mr. Udall. Thank you for those answers and as my closing 
comments just let me say when you have a law that's been on the 
books for over 30 years, it's very important for us to take a 
look at it like we're doing and this Task Force, I think, is 
undertaking its task in a very diligent way and you have really 
helped us out in terms of coming, many of you from long 
distances and providing testimony and so I just want to tell 
you in my closing that I really appreciate that and we look 
forward to working with all of you as we move forward with the 
Task Force recommendations and any kinds of legislative 
proposals that might flow out of this.
    Mr. Cannon. Thank you. Let me just associate myself with 
the comments of Mr. Udall regarding his thanks to you all and 
utilization of this record and utilization of your testimony.
    We live in an environment when you know you have a resource 
and you tap it, it declines and at the same time we have a 
market that's growing and so Mr. Fraley, I just wanted to 
follow up on some of the things you said and point out we live 
in an environment where technology does a couple of things. In 
the first place, it helps us get more out of the resource. And 
at the same time, it helps us find new resources, but it also 
helps us minimize the impact. And the key to all of this is to 
not have NEPA stop the process unduly. Let's be thoughtful 
about it. Let's take advantage of the new technology that helps 
us advance and bring down the cost of oil and gas.
    Of course, we have two issues here that I think have become 
crystallized. One is that oil and gas and the other is with 
forests, the fact is timeliness is everything in a forest 
decision and to allow NEPA to continue to create an environment 
where we have trees rotting which means that we lose the value 
of those trees, but we also damage what forest remains. That's 
obscene. It's unconscionable. It may be OK if you've got a 
10,000 year view of life, but for us who govern, we have a 
responsibility that's more contemporary than that.
    It seems to me we've seen a couple of things here from this 
panel that really do require attention to what we need to do to 
change NEPA.
    Thank you, Madam Chair. I yield back.
    Ms. McMorris. Mr. Grijalva.
    Mr. Grijalva. Thank you. It's all those vowels. I want to 
ask Ms. Budd-Falen one question because Ms. Blancett's and Ms. 
Montoya's points are well taken and have you found it necessary 
to use NEPA, let's say to litigate on behalf of a farmer or 
rancher, plaintiff, represent them, let's say against an energy 
company? I'm just curious.
    Ms. Budd-Falen. Yes. Those were not cases against energy 
companies. The cases I've been most involved with is the 
release of Mexican wolves and we have used NEPA in those 
situations because the ranchers firmly believed that the 
Federal agencies did not consider the needs of local 
communities. There were local communities and counties that 
requested joint lead agency and cooperating agency status that 
were denied in the NEPA process. And these were the counties 
that were right in the wolf recovery area and so we did try to 
use NEPA in those cases because we believe that the Federal 
agencies were so intent on releasing Mexican wolves that they 
overlooked a lot of the interest that the local communities and 
the people who live in those areas who would be living with 
Mexican wolves would have to endure.
    Mr. Grijalva. So the adage what's good for the goose would 
not apply here in terms of there's some concern about the 
frivolousness of people using litigation. You just said you 
used it with a different purpose, but still the processes are 
available to you and the public.
    Ms. Budd-Falen. I think you're talking about differences in 
degrees. You're talking about a Mexican wolf recovery program 
that covers two states, huge amounts of people, large amounts 
of area. That's one thing.
    I believe that NEPA properly applies in that and that the 
public should be involved.
    Mr. Grijalva. That's your major or minor issue?
    Ms. Budd-Falen. But then you look at this huge stack of 
documents and we're talking about a mile of fence. And you 
still have to go through all this NEPA process. That's what I'm 
asking Congress to look at.
    Mr. Grijalva. And your final work and your advocacy for 
ranchers and farmers, have you, irrespective of NEPA found it 
necessary to litigate against energy companies in terms of--Ms. 
Montoya just brought up, the lack of cooperation and consensus 
and working with the ranching families or the farmers that are 
already there on that land?
    Ms. Budd-Falen. I'm only doing one case that actually does 
not--it's litigation against the Bureau of Land Management for 
lack of enforcement. That's the issue I have.
    Mr. Grijalva. On an energy----
    Ms. Budd-Falen. On issues regarding energy. The case is 
filed against the BLM, because we're concerned that once, just 
simply allowing oil and gas is one thing, but making sure then 
compliance is a whole other matter and that was the question.
    Mr. Grijalva. I couldn't agree with you more. I could not 
agree with you more.
    Let me just in a closing statement, and if I may, Madam 
Chair, maybe some information that would be useful for all the 
Task Force members. This whole NEPA discussion, there's things 
that have been occurring in stand alone legislation, maybe an 
inventory or where that is. Executive Orders that Bush has--
President Bush has been signing and issuing and their agencies 
and secretaries, the Healthy Forest Legislation and the points 
that it had in there about NEPA, the energy bill that was just 
passed, and the points that it had about NEPA; Department of 
Defense initiatives in terms of NEPA. I think that kind of 
inventory, maybe a thousand cuts will kind of avoid the 
bludgeon, but nevertheless, they're in it and I think that 
inventory will be good for the Task Force.
    Thank you very much and thank you for your leadership and I 
appreciate and I appreciate the time that the witnesses all 
took to be here. Thank you.
    Ms. McMorris. Very good. I want to say a big thank you to 
all of you and as well as my fellow members that took time to 
be here today and I know you all took time to prepare testimony 
and the time to be here and we really do appreciate it. And the 
goal of this Task Force just is to gain a better understanding 
compared to what was passed and signed into law in 1970 and how 
is it being applied today on the ground. And I think it's well 
worth noting that we kind of--there's been bits and pieces in 
different laws and I think it would be valuable to do that 
inventory. I think that's why we're here today is because we've 
done it. There's been the effort within the Forest Service and 
there's been an effort within the energy bill and I think it 
pointed to the importance of us just taking the time to get a 
better understanding from the bigger picture.
    One of the keys of NEPA is that it does mandate the public 
involvement, the public participation. But I think one thing 
I've learned is that it's not just producing a lot of paperwork 
and then asking for public input. How do we best go about 
involving the public from the very beginning so that the 
decisions are good decisions that are going to ultimately help 
the environment. And I think many of you had some 
recommendations that would be helpful to that. So that we move 
from confrontation to collaboration in our effort to protect 
the environment. And I think that's a goal that we all share. 
We've come a long way and I think it's important at times for 
us to acknowledge that we have improved and that science 
technology is leading us to even more greater uses and 
applications as we work through all of these areas.
    So anyway, again, thanks for being here. We appreciate your 
testimony. If you have further comments, there may be--we may 
ask you questions following this hearing. We would ask you to 
respond in writing. We encourage you to tell others about our 
website or if you have others that would like to--we're seeking 
input from everyone.
    Thanks again. We appreciate your being here.
    [Whereupon, at 12:57 p.m., the Committee was adjourned.]
    [NOTE: Information submitted for the record has been 
retained in the Committee's official files.]

                                 
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